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The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



IN ADDITION 

Final Decision Letters 

Wildlife Resources Commission Proclamation 



; ^ORT/Tg 



«. 



B 



CCNi 

tiomI II u 



PROPOSED RULES 




Environment, Health, 


and Natural Resources 


Human Resources 




Justice 




Nursing, Board of State Personnel 


Transportation 


RECEIVED 


FINAL RULES 




Human Resources 


MAY 6 1992 


RRC OBJECTIONS 


P\W. LIBRARY 



RULES INVALIDATED BY JUDICIAL DECISION 
CONTESTED CASE DECISIONS 

ISSUE DATE: MAY 1, 1992 

Volume 7 • Issue 3 • Pages 174-331 



INFORMATION ABOUT THE NORTH CAROLINA RFGISTFR AND AOMTNTSTRATTVE rODF 



NORTH CAROLINA REGISTER 



TTie North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (5105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (58.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh. N. C. 27611-7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing): a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule tliat 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issi 
temporary rules. Within 24 hours of submission to OAH, tl 
Codifier of Rules must review the agency's written statement 
findings of need for the temporary rule pursuant to the provisions 
G.S. 150B-21.1. If the Codifier determines that the findings me 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC 
the Codifier determines that the findings do not meet the criteri 
the rule is returned to the agency. The agency may supplement i 
findings and resubmit the temporary rule for an additional revie 
or the agency may respond that it will remain with its initi 
position. The Codifier, thereafter, will enter the rule into tl 
NCAC. A temporary rule becomes effective either when tl 
Codifier of Rules enters the rule in the Code or on the six 
business day after the agency resubmits the rule without chang 
The temporary rule is in effect for the period specified in the rule 
180 days, whichever is less. An agency adopting a temporary n 
must begin rule-making procedures on the permanent rule at t 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE COD 



The North Carolina Administrative Code (NCAC) is 
compilation and index of the administrative rules of 25 sti 
agencies and 38 occupational licensing boards. The NC/ 
comprises approximately 15,000 letter size, single spaced pages 
material of which approximately 35% of is changed annual 
Compilation and publication of the NCAC is mandated by G 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state ager 
is assigned a separate title which is further broken down 
chapters. Title 21 is designated for occupational licensing boards 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost 
two dollars and 50 cents (S2.50) for 10 pages or le 
plus fifteen cents (50.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling 
excess of 15,000 pages. It is supplemented montl 
with replacement pages. A one year subscription to 
full publication including supplements can 
purchased for seven hundred and fifty doll: 
(5750.00). Individual volumes may also be purchaj 
with supplement service. Renewal subscriptions 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, p 
number and date. 1:1 NCR 101-201, April 1, 1986 refer; 
Volume 1, Issue 1, pages 101 through 201 of the North Carol 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office ol 
Administrative Hearings, ATTN: Rules Division, P.O 
Drawer 27447, Raleigh. North Carolina 27611-7447. (919! 
733-2678. 



( 



NORTH 
CAROLINA 
REGISTER 




Ojjice of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, i\C 27611-7447 

(919) 733-2678 



ISSUE CONTENTS 



I. IN ADDITION 

Final Decision Letters 174 

Wildlife Resources Commission 
Proclamation 176 



II. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Coastal Management 21 1 

Environmental Health 223 

Environmental Management .... 1 90 
Human Resources 

Facility Services 177 

Social Services 183 

Justice 

Alarm Systems Licensing 
Board 189 

State Bureau of Investigation... 188 
Licensing Board 

Nursing, Board of 232 

State Personnel 

Office of State Personnel 237 

Transportation 

Highways, Division of 228 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly \Iasich, 

Director APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



III. FINAL RULES 

Human Resources 

Mental Health, Developmental 
Disabilities and Substance 
Abuse Services 297 

rv . RRC OBJECTIONS 298 

V. RULES INVALIDATED BY 

JUDICIAL DECISION 301 

VI. CONTESTED CASE 
DECISIONS 

Index to ALJ Decisions 302 

Text of Selected Decisions 312 

VII. CUMULATrVE INDEX 330 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1992 - December 1992) 



Issue 


Last Day 


Last Day 


Earliest 


Earliest 


Last Day 


* 


Date 


for 


for 


Date for 


Date for 


to 


Earliest 




Filing 


Electronic 


Public 


Adoption 


Submit 


Effective 






Filing 


Hearing 


by 

Agency 


to 
RRC 


Date 


+++*++♦++++♦+++++♦++++++*♦♦♦++♦++++++++++*+++*+++++++++++++++++++++ 


01 02,92 


12 09,91 


12/16/91 


01/17/92 


02 01 92 


02/20,92 


04 01/92 


01/15/92 


12,20/91 


12/31/91 


01/30/92 


02 14'92 


02/20/92 


04 01/92 


02/03/92 


01/10.92 


01/17/92 


02/18/92 


03 04/92 


03,/20/92 


05 01/92 


02/14/92 


01 24/92 


01, '3 1/92 


02/29 92 


03'15'92 


03/20/92 


05/01/92 


03/02,92 


02 10/92 


02/17/92 


03/17/92 


04 01/92 


04,'20/92 


06 01/92 


03/16/92 


02 24/92 


03/02/92 


03/31,-92 


04 15/92 


04/20/92 


06/01/92 


04/01/92 


03 11/92 


03,18/92 


04 16 92 


05 01/92 


05/20'92 


07/01/92 


04/15/92 


03 25/92 


04 01/92 


04 30 92 


05 15/92 


05/20/92 


07/01/92 


05/01/92 


04 10/92 


04/17/92 


05/16'92 


05 31/92 


06/20/92 


08/03/92 


05/15/92 


04 24/92 


05 01/92 


05/30/92 


06/14/92 


06/20/92 


08/03/92 


06/01/92 


05 11 92 


05/18,92 


06 16 92 


07 01/92 


07/20/92 


09/01/92 


06/15/92 


05 22,92 


0601/92 


06 30/92 


07 15 92 


07/20/92 


09-01/92 


07/01/92 


06 10/92 


06/17/92 


07 16 92 


07 31/92 


08/20/92 


10 01/92 


07/15/92 


06 24/92 


07,01/92 


07'30/92 


08 14/92 


08/20/92 


10/01/92 


08/03/92 


07/13,92 


07/20/92 


08 18/92 


09 02/92 


09/20/92 


11/02/92 


08/14/92 


07/24/92 


07/31/92 


08,29 92 


09 13/92 


09,20/92 


11/02/92 


09/01/92 


08 11/92 


08/18/92 


09 16 92 


10 01 92 


10 20/92 


12 01.92 


09/15/92 


08 25/92 


09/01/92 


09 30 92 


10 15 92 


10 20,92 


1201/92 


10/01/92 


09 10/92 


09,17/92 


10/16 92 


10 31 92 


1 1 -20/92 


01 04 93 


10/15/92 


09 24/92 


10/01/92 


1030/92 


11 14 92 


11 20/92 


01 04,93 


11/02/92 


1012/92 


10/19/92 


11/17/92 


120292 


12 20/92 


02/01/93 


11/16/92 


10 23,92 


10/30/92 


12 01/92 


12 1692 


12,20/92 


02 01/93 


12/01/92 


11 06/92 


11/13,92 


12 16 92 


1231 92 


01,20/93 


03 01/93 


12/15/92 


11 24,92 


12,01/92 


12 30 92 


01 14 93 


01 20/93 


03 01/93 



* The "Earliest Effective Date" is computed assuming that the agency follows 
the publication schedule above, that the Rules Review Commission approves the 
rule at the next calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier of Rules five (5) business days before the 1st business 
day of the next calendar month. 



IN ADDITION 



[G.S. 120-30.9H, effective July 16, 19S6, requires that all letters and other documents issued by the 
A ttorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of J 965 be published in the North Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 

JRD:LLT:KAL:tlb . 

DJ 166-012-3 Voting Section 

92-0426 P.O. Box 66128 

Washington, D.C. 20035-6128 

April 3, 1992 

George A. Weaver, Esq. 

Lee, Reece & Weaver 

P. O. Box 2047 

Wilson, North Carolina 27894-2047 

Dear Mr. Weaver: 

This refers to the 1992 redistricting plan for the county commission in Wilson County, North 
Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, 
as amended, 42 U.S.C. 1973c. We received your initial submission on February 3, 1992; supplemental 
information was received on February 26, 1992. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar sub- 
sequent Htigation to enjoin the enforcement of the change. In addition, as authorized by Section 5, 
we reserve the right to reexamine this submission if additional information that would otherwise require 
an objection comes to our attention during the remainder of the sixty-day review period. See the 
Procedures for the Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 

Siacerely, 

John R. Dunne 

Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



7:3 NORTH CAROLINA REGISTER May I, 1992 174 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 

JRD:GS:SKM:lri 

DJ 166-012-3 Voting Section 

92-0597 P.O. Box 66128 

Washington, D.C. 20035-6128 

April 10, 1992 

Michael Crowell, Esq. 
TTiarrington, Smith & Hargrove 
P. O. Box 1151 
Raleigh, North Carolina 27602 

Dear Mr. CroweU: 

This refers to the change in method of election to limited voting for the Town of JamesviUe in 
Martin County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting 
Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on February 11, 1992. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar sub- 
sequent litigation to enjoin the enforcement of the change. See the Procedures for the Administration 
of Section 5 (28 C.F.R. 51.41). 

Sincerely, 



John R. Dunne 

Assistant Attomey General 

Civil Riehts Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



175 7:3 NORTH CAROLINA REGISTER May 1, 1992 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



North Carolina Wildlife Resources Commission 

512 N. Salisbury Street, Raleigh, North Carolina 27604-1188, 919-733-3391 
Charles R. Fuilwood, Executive Director 



PROCLAMATION 

Charles R. Fuilwood, Executive Director, North Carolina Wildlife Resources Commission, acting 
pursuant to North Carolina Statute § 113-292 (cl) and authority duly delegated by the Wildlife Re- 
sources Commission, hereby declares that effective at 12:01 a.m. on 20 ApriJ, 1992, the season for 
harvesting striped bass by hook-and-line is closed in all inland and joint waters of the Roanoke River 
Striped Bass Management Area. 

The Roanoke River Striped Bass Management Area is defmed as the inland and joint fishing waters 
of the Roanoke River, extending from its mouth to Roanoke Rapids Dam and all tributaries of the 
Roanoke River, including but not limited to, the Cashie, Middle, and Eastmost Rivers and their 
tributaries. 

This Proclamation shall remain in effect until January 1, 1993, or untU a new proclamation reopening 
the described waters or portions thereof for striped bass fishing is issued. 

NOTES: 

a) This Proclamation is issued under the authority of N.C.G.S.§§ 113-132; 113-134; 113-292; 113-304; 
and 113-305. 

b) The striped bass harvest quota for the hook and line sport fishery of the Roanoke River Striped 
Bass Management Area has been met, and the area is closed for striped bass fishing until reopened 
as prescribed herein. 

c) All striped bass regardless of condition taken subsequent to the effective date and time of this 
Proclamation shall be immediately returned to the waters where taken and no striped bass may 
be possessed. 

d) Any person who violates this Proclamation also violates apphcable law and is subject to the 
sanctions provided by law. 

NORTH CAROLINA WILDLIFE RESOURCES COMMISSION 



by_ 



Charles R. FuUwood 
Executive Director 



7:3 NORTH CAROLINA REGISTER May I, 1992 176 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOLRCES 

lyotice is hereby given in accordance with G.S. 
I SOB- 2 1.2 that the Medical Care Commission 
(Division of Facility Services) intends to adopt 
rules cited as 10 NCAC 3B .0801 - .0806; 3H 
.0221; amend rules cited as 10 NCAC 3H .0/08, 
.0315. 

1 he proposed effective date of this action is A u- 
gust 1, 1992. 

1 he public hearing will be conducted at 9;30 
a.m. on June 12, 1992 at the Room 201 , Council 
Building. 701 Barbour Drive, Raleigh. NC 27603. 



R 



eason for Proposed Action: 



10 NCAC 3B .0801 - .0806. To adopt rvles for the 
implementation of an appeal process required by 
1990 OBRA to hear appeals arising from the dis- 
charge or transfer of nursing home patients. 
10 NCAC 3H .0108, .0315. To bring the definitions 
into compliance with the Omnibus Budget Recon- 
ciliation A ct. 

10 NCAC 3H .0221. To strengthen the adminis- 
trative penalty process by incorporating it into a 
rule. 



Cc 



omment Procedures: Written comments 
should be submitted to Jackie Sheppard, 701 
Barbour Drive, Raleigh, North Carolina 27603 by 
June 11. 1992. Oral comments may be given at 
the hearing. 

CHAPTER 3 - FACILITY SERVICES 

SL BCHAPTER 3B - PROCEDURAL RULES 

SECTION .0800 - HEARINGS: TR.\NSFERS 
AND DISCHARGES 

.0801 DEFINITIONS 

The foUowmg definitions will apply throughout 
this Subchapter: 
(1) ''Agency" means the Hearing Officer and 
his otTice in the Di\ision of Facility Ser\'ices. 



Department of Human Resources. 
(2) "Dismissal" means the dismissal of a re- 
quest for a hearing if 

(a) the applicant withdraws the request in 
wntmg: or 

(b) the applicant fails to appear at a scheduled 
hearing without good cause. 



(3) "Division" means the North Carolina Di- 
vision of Facility Services of the Department 
of Human Resources. 

(4) "Facihty" means a skilled nursing facihty 
(SNF), or a nursing facility (NF) which 
meets the requirements of sections 1819 and 
1919(a), (b), (c). and (d) of the Social Secu- 
rity Act. 'Tacihty" may include a distinct 
part of an institution specilied in 42 CFR 
44U-40 or 42 CFR 440-150, but does not 
include an institution for the mentally re- 
tarded or persons with related conditions 
descnbed in 42 CFR 440-15Q(c). 

(5) "Hearing Officer" means the person desig- 
nated to preside over hearings between resi- 
dents and nursing facility providers regarding 
transfers and discharges. 

(6) "Notice" means a notification by the fa- 
cility to the resident of a transfer or dis- 
charge. The notice must include: 

(a) reason for the transfer or discharge; 

the effective date of the transfer or dis- 



Ml 



charge; 

the location to which the resident is 
transferred or discharged; 
statement that the resident has the right 
to appeal to the Hearing Officer; 
(e) the name, address, and telephone number 
of the state Lon.g-Term Care Ombuds- 
man: 



111 



(£i 



for nursing facility residents with de\elop- 
mental disabilities, the maihng address 
and telephone number of the agency re- 
sponsible for the protection and advocacy 
of de\elopmentally disabled indi\iduals 
established under Part C of the Develop- 
mental Disabilities Assistance and BiU of 
Riahts Act; and 

for nursing facility residents who are 
mentally ill, the mailing address and tele- 
phone number of the agency responsible 
for the protection and advocacy of men- 
tally ill individuals established under the 
Protection and Ad\ocacy for Mentally 111 
Individuals Act. 



<Jl 



"Request for a Hearing" means a clear 
expression, in writing, by the resident or his 
authorized representative, that he wants the 
opportunity to present his case to the hear- 
ing otTicer. 
8| "Request for Hearing Form" means a form 
which is to be given to the resident or his 
designated representati\'e simultaneous with 
the Notice of Transfer or Discharge. Fhe 
request for hearing form must include at the 
least: 

the date of Notice of Transfer or Dis- 



{^ 



charge; 



777 



.i NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(b) the date to be transferred or discharged; 

(c) Division of Facility Services' correct mail 



(91 



ing address and phone number; 
resident's name, address, telephone num- 
ber, and social securitv number; 
the nursing facility's name and address; 
name, address, and telephone number of 
authorized representative; and 
space to elect the option of a hearing by 
telephone or in person. 
"Resident" means any person who is re- 
ceiving treatment or long-term care in a fa- 
cihty, or his authorized representative. 
(10) ''Serve" or "Service" means personal de- 
livery, deUvery by first class or certified 
L'mted States Postal Ser\dce mail or delivery 
by licensed overnight express mail, postage 
prepaid and addressed to the party at his or 
her last Icnown address. Service by mail or 
licensed overnight express mail is complete 
upon placing the item to be served, enclosed 
in a wrapper addressed to the person to be 
served, in an official depository of the 
United States Postal Service or upon deliv- 
ery, postage prepaid and wrapped in a 
wrapper addressed to the person to be 
served, to an agent of the overnight express 
mail service. For purposes of service on the 
Division, the Hearing Officer of the Division 
shall be the designated agent. 

Authority 42 U.S.C.S. 1396 r (e) (3) and (f) 
(3); 42 C.F.R. 483.5; 42 C.F.R. 483. 1 2; G.S. 
1438-165(10). 

.0802 GENERAL 

(a) The Division has estabhshed an appeal 
process for nursing facthty residents who have 
been notified of transfer or discharge. AU resi- 
dents who have been advised of the date of 
transfer or discharge in writing, may request that 
the Division Hearing Officer set a date for a fair 
hearing in accordance with and subject to these 
Rules. 

(b) The Rules of Civil Procedure as contained 
in G.S. lA-1 and the General Rules of Practice 
for the Superior and District Courts as author- 
ized by G.S. 7A-34 and found m the Rules Vol- 



ume of the North Carolina General Statutes shall 
not apply in anv hearings held by the Division 
Heanng OlTicer unless another specific statute or 
rule provides otherwise. Di\'ision hearings are 
not hearings within the meaning of G.S. Chapter 
15QB and will not be governed by the provision 
of that Chapter unless otherwise stated in these 
Rules. Parties may be represented by counsel at 
the hearing. 



Authority 42 U.S.C.S. 1396 r (e) (3) and (f) 
(3); 42 C.F.R. 483.12; G.S. 1438-165(10). 

.0803 INITIATING A HEARING 

(a) In order to initiate a hearing with the 
Hearing OtTicer, a resident must first have been 
served by the facility administrator with a written 
Notice of Transfer or Discharge and must file a 
Request for Hearing in accordance with the 
Rules in 10 NCAC 3B .0800. The Request for 
Hearing must be in writing and must be signed 
by the resident. A Request for Hearing form 
shall be provided to the resident by the facility for 
this purpose. 

(b) The hearing is a mechanism for Ustening to 
appeals by residents concerning disputes over 
transfers and discharges. The hearing shall be 
narrowly focused on discharge and transfer issues 
between the nursing facihty and the resident and 
shall not involve Medicaid matters such as ehgi- 
bihty, which is the responsibility of the Medicaid 
hearing officer. 

(c) Should an appeal of the Notice of Transfer 
or Discharge be desired, a Request for a Hearing, 
accompanied by the Notice of Transfer or Dis- 
charge, shall be served to the Hearing Officer and 
must be received by him no later than 1 1 days 
from the date of the facihty's Notice of Transfer 
or Discharge. If the request for hearing has not 
been received within 1 1 days, the resident shall 
waive his right to appeal. The resident must be 
notified of the option for the hearing to be in 
person (face-to-face) or by telephone. 

(d) The facihty administrator must make 
available to the resident information and records 
at least five working davs prior to the hearing to 
enable an opportunity for review and prepara- 
tion. Ihe facility administrator must fon.'.'ard 
identical information relevant to the transfer or 
discharge to the agency, to be received at least 
live working days prior to the hearing. 

Authority 42 U.S.C.S. 1396 r (e) (3) and (f) 
(3); 42'C.F.R. 483.12; GS. 1438-165(10). 

.0804 NOTICE OF HEARING 

Upon receipt of a timely request for a hearing, 
the Hearing Officer shall promptly notify all par- 
ties of receipt of the Request and shall arrange 
with the parties a time, date, and telephone 
numbers (if by phone conference). If the hearing 
is to be conducted in person (face-to-face), 
hearings will be held m the Council Building. 701 
Barbour Drive on the Dorothea Dix Campus in 
Ralei.gh. North Carolina, with time and date ar- 
ranged with the parties by the hearing officer. 
The resident, facility administrator, and other in- 



7:5 NORTH CAROLINA REGISTER May 1, 1992 



178 



PROPOSED RULES 



tercsted parties will be served notice of the date 
of hearing. 

Authority 42 U.S.C.S. 1396 r (e) (3) and (f) 
(3): 42 C.F.R. 483.12; G.S. 1438-165(10). 

.0805 DOCUMENTS 

AU documents required to be filed pursuant to 
these Rules shall be served on all other parties 
by the filing party. 

Authority 42 U.S.C.S. 1396 r (e) (3) and (f) 
(3); 42 C.F.R. 483.12; G.S. 1438-165(10). 

.0806 HE.\RING OFFICER'S FINAL DECISION 

Ihe Hearing OfTicer's final decision will either 
uphold or reverse the facihty's decision. Copies 
of the final decision shall be served upon the 
parties. 

Authority 42 U.S.C.S. 1396 r (e) (3) and (f) 
(3); G.S. 1438-165(10). 

SUBCHAPTER 3H - RULES FOR THE 
LICENSING OF NURSING HOMES 

SECTION .0100 - GENERAL INFORMATION 

.0108 DEFINITIONS 

The following definitions will apply throughout 
this Subchapter: 

(1) "Accident" means an unplanned or un- 
wanted event resulting in the injury or 
wounding, no matter how slight, of a patient 
or other individual. 

(2) "Adequate" means, when applied to vari- 
ous aroas services, that the services are at 
least satisfactory in meeting a referred to 
need when measured against contemporary 
professional standards of practice. 

(3) "Administrator" means the person who 
has authority for and is responsible for the 
overall operation of a facility. 

(4) "Appropriate" means right for the specified 
use or purpose, suitable or proper when 
used as an adjective. When used as a tran- 
sitive verb it means to set aside for some 
specified exclusive use. 

(5) "Brain injurv' extended care" is defmed as 
a multi-discipUne maintenance program for 
patients who have incurred brain damage 
caused by external physical trauma and who 
have completed a primary course of 
rehabilitative treatment and have reached a 
point of no gain or progress for more than 
three consecutive months. Services are 
provided through a medically supervised 
inter-disciplinary process and are directed 
toward maintaining the individual at the 



optimal level of physical, cognitive and be- 
havioral functions. 

(6) "Capacity" means the maximum number 
of patient or resident beds for which the fa- 
cility is licensed to maintain at any given 
time. Wh* numbor uhall be dotorminod as 
follows: 

(*) Bodroomo shall hav e minimum uquaro 
footage »f WO square feet' fo* a singl e 
bedroom aft4 80 squar e feet pep pationt 
&f rooidont m multi boddud rooms. This 

space » toilot rooms, washrooms, clos e ts, 
vostibulos, corridors, aft4 budt in fumi 

fb^ Dining, rocroation an4 common «*e aroas 

■"11 r^il'il-\I.i t- ^-^ -1 1 1 ♦ j--^ t --1 I r\ /-i LjiO^ t 1-1 -1 fi I ^ f- f-i 1 1 <-> rr^ 

Fi^^t t^^ij; ^^Oj^ Tj-1 y fi 1 \ r c- t n I -r )^a^\c o r-i ^-^ r\ j-y I r-\ r- r' 
l\jyj\. LTV," I ITVTJ rTTr rTTTTmm^ TTCTT^ Com 1 l.\J 1\J J\5 

^J^^^^i ^^^1 ^^^^^^^j^^ ^^^^^L I^^^Jl 1^^^^^ T r-\ T* ^"i r^ r^n < ^-'i I < ^-i **i r 
iTTttTT rrTT L^J \Jl HI \J r^^^Tr ^^^T ^^^^T rTTT tR^TlUVlIJUl T" 

hom e b e ds. 

(7) "Combination Facility" means a combi- 
nation home as defmed in G.S. 131E-101. 

(8) "Convalescent Care" means care given for 
the purpose of assisting the patient or resi- 
dent to regain health or strength. 

(9) "Department" means the North Carolina 
Department of Human Resources. 

(10) "Director of Nursing" means the nurse 
who has authority and direct responsibility 
for all nursing services and nursing care. 

(11) "Drug" means substances: 

(a) recognized in the official United States 
Pharmacopoeia, official National 
Formulary, or any supplement to any of 
them; 

(b) intended for use in the diagnosis, cure, 
mitigation, treatment, or prevention of 
disease in man or other animals; 

(c) intended to affect the structure or any 
function of the body of man or other ani- 
mals, i.e., substances other than food; and 

(d) intended for use as a component of any 
article specified in (a), (b), or (c) of this 
Subparagraph. 

(12) "Duly Licensed" means holding a current 
and valid license as required under the Gen- 
eral Statutes of North Carolina. 

(13) "Existing Facility" means a licensed facil- 
ity currently licensed ©f a proposed facility, 
proposed addition te a licensed facility ©f 
proposed remodeled licensed facility tba* 
wttt be built according te- plans afi4 specifi 
cations ' i S'hich have been appro ' ■ ed by the 
Department. through the pr e liminar ;' ' 
working drassings stage prior te the effective 
date ef tte Rule. 

(14) "Exit Conference" means the conference 
held at the end of a survey inspection or in- 



779 



7:3 NORTH CAROLIN.A REGISTER Mav I, 1992 



PROPOSED RULES 



vestigation b+rt prior te rinaliging tfee oamo, 
between the Department's representatives 
wbe- conductod tbe sup i 'oy, inspoction &f m- 
veotigation and the facihty administration 
representative. 

(15) "Incident" means an unplanned or un- 
wanted event which has not caused a wound 
or injury to any individual but which has the 
potential for such should the event be re- 
peated. 

(16) " Interdisciplinary" means an integrated 
process involving a representative from each 
discipline of the health care team. 

(17) (+6) "Licensed Practical Nurse" means a 
nurse who is duly licensed as a practical 
nurse under G.S. 90, Article 9A. 

(18) fW) "Licensee" means the person, firm, 
partnership, association, corporation or or- 
ganization to whom a license has been is- 
sued. 

(4^ "Lif e Coro Contor" m e ans as institution, 
firm, aooociation, orgaiuzation, corporation, 
partnorohip, individual &f oth e r busin e ss 
which advortiooa te th» public e* provides 
continuing eaf© te individuals fof lifo ifi- 
cluding rotiromont, domiciliary, aft4 nursing 
eape facihtios, from tfee timo ©f admiocion t«- 
tbe tim e ©f d e ath. Such continuing eafe is 
furnish e d pursuant te- a continuing eafe 
Qgroomont aft4 t» individuals eet- related by 
consanguinity ©f affmity te- tbe provider. 

(19) "Medication" means drug as defmed in 
(11) of this Rule. 

(20) "New Facility" means a proposed facility, 
a proposed addition to an existing facility 
or a proposed remodeled portion of an ex- 
isting facility that is constructed according 
to plans and specifications approved by the 
Department subsequent to the effective date 
of this Rule. If determined by the Depart- 
ment that more than half of an existing fa- 
cility is remodeled, the entire existing facility 
shall be considered a new facility. 

(21) "Nurse Aide" means afty person regardless 
©f worlcing titl« wb© is qualified t© provide 
nursing eafe under Ae supenision ©f a li- 

any individual providing nursing or nursing- 
related services to patients in a facility who 
is not a Licensed health professional, a regis- 
tered dietitian or someone who volunteers 
to provide such services without pay, and 
Listed in a nurse aide registry approved by 
the Department. aft4 is hst e d witb the 
Board ©f Nursing Central Registry. 

(22) "Nurse Aide Trainee" means an individual 
m training t© bocomo a nuroo aid e , who has 
not completed an approved nurse aide 



training course and competency evaluation 
and is providing limited direct patient care 
services under nursing supervision. The 
term does not apply to volunteers. 

(23) "Nursing Facihty" means that portion of 
a nursing home certified under Title XIX of 
the Social Security Act (Medicaid) as in 
compliance with federal program standards 
for nursing facilities. It is often used as 
synonymous with the term "nursing home" 
which is the usual prerequisite level of state 
hcensure for nursing facihty (NF) certif- 
ication and Medicare skilled nursing facLhty 
(SNF) certification. 

(24) "Nurse in Charge" means the nurse to 
whom duties for a specified number of pa- 
tients and staff for a specified period of time 
have been delegated, such as for Unit A on 
the 7-3 or 3-11 shift. 

(25) "On Duty" means personunel who are 
awake, dressed, responsive to patient needs 
and physically present in the facility per- 
forming assigned duties. 

(26) "Operator" means the owner of the nurs- 
ing home business. 

(27) "Patient" moans afty person admitted fof 
nursing car e . "Person" means an individual, 
trust, estate, partnership or corporation in- 
cluding associations, joint-stock companies 
and insurance companies. 

(28) "Proposal" means a Negative Action 
Proposal containing documentation of 
fmdings that may ultimately be classified as 
violations and penalized accordingly. 

(29) (48) "Provisional License" means an 
amended hcense recognizing significantly 
less than full comphance with the hcensure 
rules. It- is applicabl e t© Hew hconsoos who 

control ©F to liconoooo with serious compli 
anco problems. 

(30) (3^ "Physician" means a person hcensed 
under G.S. Chapter 90, Article 1 to practice 
medicine in North Carolina. 

(31) (4^ "Qualified Dietitian" means a person 
who meets the standards and qualification 
estabhshed by the Commission on Dietetic 
Registration of the American Dietetic Asso- 
ciation. 

(32) "Qualified Activities Director" means a 
person who has the authority and responsi- 
bihty for the direction of all therapeutic ac- 
tivities in the nursing facihtv and who meets 
the qualifications set forth under 10 NCAC 
3H .1204. 

(33) "Qualified Pharmacist" means a person 
who is hcensed to practice pharmacy in 



7:3 NORTH CAROLINA REGISTER May I, 1992 



180 



PROPOSED RULES 



North Carolina and who meets the quali- 
fications set forth under H) NCAC 3H .U903. 

(34) 'Qualified Social Services Director" means 
a person who has the authonty and respon- 
sibility for the pro\ision of social services in 
the nursing home and who meets the quali- 
fications set forth under 10 NCAC 3H .1306. 

(35) (44-^ "Registered Nurse" means a nurse 
who is duly licensed as a registered nurse 
under G.S. 90, .\rticle 9A. 

(36) f^^ "Resident" means any person admit- 
ted for care to a domiciliary home part of a 
combination home as defined in G.S. 
131E-101. 

(37) f34) "Sitter" means an individual employed 
to provide companionship and social inter- 
action to a particular patient, usually on a 
private duty basis. 

(3S) (44^ "Super\isor-in- Charge (domiciliary 
home)" means any employee to whom su- 
pervisory duties for the domiciliary home 
portion of a combination home have been 
delegated by either the Administrator or Di- 
rector of Nursing. 

(39) "Surveyor" means an authorized repre- 
sentati\'e of the Department who inspects 
nursing facilities and combination facilities 
to determine comphance with rules as set 
forth m G.S. 131F-1 17 and applicable state 
and federal laws, rules and regulations. 

(40) (4^ "Ventilator dependence ' is defmed as 
physiological dependency by a patient on 
the use of a ventilator for more than eight 
hours a day. 

(41 ) "Violation" means a finding which directly 
relates to a patient's health. s^d'et\ or welfu-e 
or which creates a substantial risk that death 
or senous physical harm will occur and is 
detcnnincd to be an infraction of the regu- 
lations, st^mdards and requirements set forth 
in G.S. 131E-1 17 or applicable state and 
federal laws, rules and regulations. 



Authority G.S. 131 E- 104; 42 U.S.C. J 396 r (a). 
SECTION .0200 - LICENSURE 

.0221 ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 

(a) The surveyor shall identify areas of non- 



compliance resulting from an investigation or 
sur\ey which may he violations of patients' nglits 
contained in Cj.S. 13H--1 17 or rules contained in 
this Subchapter. The areas of non-complia 



(b) The Internal Review Committee shall be 
composed of three members: 

( I ) The assistant chief of the I icensure Sec- 
tion, who shall serve as chairman; 

(3) The head of the Complaints Investigation 
Branch, if the proposed is the result of a 
health care survey; or the head of the 
Health Care lacdities Branch, if the pro- 
posal is the result of a complaint investi- 
gation; and 

(3) A third party selected by the chief of the 
Licensure Section. 

(c) The Department shall notify the licensee 
by certified mail within 10 workmg days from the 
time the proposal is received by the Internal Re- 
view Committee that an administrative penalty 
is being considered. 

(d) The licensee shall have J_0 working da\'s 
from receipt of the notification to pro\ide the 
Department any additional written information 
relating to the proposed administrative penalty. 
The licensee shaU have fi\e working davs from 
receipt of the notification to ad\ise the Depart- 
ment as to whether the licensee, an authorized 
representative or both plan to meet with the 
Internal Re\iew Committee. 

(e) If the licensee chooses to attend the meeting 
as pro\ided in Paragraph (d) of this Rule, a sur- 
veyor or a representative of the branch which 
conducted the investigation or survey shall attend 
the Internal Review Committee meeting when 
sur\ey schedules permit. Ihe Department shall 
notify the Di\ision of Aging of the licensee's 
plans to meet with the Committee or any change 
in the date or time of the meeting. Ihe agency 
that conducted the sur\ey or m\cstigation shaU 
be responsible for notifying the complainant, if 
any. The complainant, if anv. may attend the 
meeting relating to his or her complaint. 

(f) The Internal Re\ie\\ Committee shall re- 
view aU Negative Action Proposals, anv sur 



shall be documented b\ the sur\eyor and a Neg- 



ative .Action Proposal submitted to the Internal 
Review Committee. 



porting e\idence, and anv additional information 
provided by the hcensee that ma\' ha\e a bearing 
on the proposal such as documentation not 
available during the investigation or survey, 
action taken to correct the \iolation and plans to 
prevent the \iolation from recumng. 

(g) There shall be no taking of sworn testimony 
nor cross-examination o^ anyone durmg the 
course of Intem;.il Review Committee meetings. 

(h) Time shall be allowed during the Internal 
Resiew Committee meetings for individual pres- 
entations, the total for which shall normalU' be 
one hour for each facility" where the violations 
took place, but shall not exceed two hours. I he 
amount ot~ time allowed, up to two hours, shall 
be at the discretion of the Internal Review- 
Committee chair. Ihe order in which presenters 



ISl 



7:3 NORTH CAROLINA REGISTER Mm 1, 1992 



PROPOSED RULES 



shall speak and length of presentations shall also 
be at the discretion of the chair. 

lil If it is determined that the licensee has vio- 
lated applicable rules or statutes, the Internal 
Review Committee shall recommend an admin- 
istrative penalty type and amount for each vio- 
lation pursuant to G.S. 131E-129. The 
Department shaU notify the licensee by certified 
mail of the Committee's decision within five 
working days following the Internal Review 
Committee meeting. 

(i) If the recommended penalty is classified as 
Type B but is not a repeat violation (as defined 
by G.S. 131E-129), the licensee may accept the 
recommendation and notify the Department by 
certified mail within five working days following 
receipt of the recommendation. If the penalty is 
accepted, the licensee has 60 days from receipt 
of the recommendation to pay the penalty. 

(k) If the recommended penalty is a Type A 
violation; is a Type B violation for which a 
monetary or non-monetary penalty was assessed 
during the previous 12 months or within the time 
period of the previous licensure inspection, which 
ever time period is longer; or is a Type B vio- 
lation as provided in Paragraph (j) of this Rule 
but is not accepted by the licensee, the Internal 
Review Committee shall forward to the Penalty 
Review Committee the penalty recommendation, 
the rationale for the recommendation and all in- 
formation reviewed by the Internal Review 
Committee. 



(1) The Penalty Review Committee meets 
monthly, if there are administrative penalty rec- 
ommendations from the Internal Review Com- 



mittee^ The Penalty Review Committee may 
a.gree with or recommend changes to the Internal 
Review Committee's recommendations. If the 
recommendations are different from those of the 
Intemal Review Committee, the Department 
shall notify the licensee the day of the Penalty 
Review Committee meeting. 

(m) Recommendations bv the Penalty Review 
Committee shall be documented and forwarded 
to the Chief of Licensure who shall have five 
working days from the date of the Penalty Re- 
view Committee meeting to determine and im- 
pose administrative penalties for each violation 
as provided b^ G.S. 131E-129 and notify the 
licensee by certified mail. 

(n) The hcensee shall have 60 davs from receipt 
of the notitication to pay the assessment as pro- 
vided by G.S. 131E-129 or 30 days to appeal the 
decision as provided by G.S. 150B-22. The De- 
partment shall notify the Attorney General's Of- 
fice of any outstandmg assessments. 



Statutory Authority G.S. 13ID-34; 13IE-I04; 
143B-I65. 

SECTION .0300 - GENERAL STANDARDS OF 
ADMINISTRATION 

.0315 NURSING HOME PATIENT OR 
RESIDENT RIGHTS 

(a) Written policies and procedures shall be 
developed and enforced to implement require- 
ments in G.S. 131E-115 et seq. (Nursing Home 
Patients' BiQ of Rights) concerning the rights of 
patients and residents. The Administrator shall 
make these policies and procedures known to the 
staff, patients and residents, and families of pa- 
tients and residents and shall ensure their avail- 
ability to the public by placing them in a 
conspicuous place. 

fb) Afiy violations ef pati e nt righto oontainod 
t» G.S. 1 3 1 E 117 shall be d e torminod by repro 
s e ntativQS ef A« Depajtm e nt by invootigation ef 
sup i 'oy. 

fG^ If a lioonsod facility i« found te- b» ia ¥ie- 
lation »f afty ef tfee rights containod m G.S. 
131E 1 17, the D e partm e nt shall imposo ponaltioo 
fof e ach violation as provid e d by G.S. 131E 129. 

(4) \\Ti e n the D e partm e nt ha* boon notifiod 
that corr e ctiv e action has boon takon fop oach vi- 

O I n t * "^ *^ T rjm-iTu-''-tt«/--vr-t £^i cr^^^^ c-\~i ••\\\ I^^ Q^^^T^ 1-^t f ^xQ^i 

©f moro r e pr e s e ntativ e s ©f the D e partment. 

fe) The Dopartmont shall calculat e a total ef 
aH fmos loviod against a faciUty bas e d &» the 
number afi4 oovority »f violations aft4 the num 

m e ach violation. 

ff^ The Dopartmont shall fpisA a statement te 
the facility showing a total fifie fof e ach violation 

•~tr-\ /■{ ^ ♦ <-t t ■-■ I r~i\ rtnr\r' H i »i-v i r-K V-> i-^ yft < ^H T .^ T- --ill T r-i /-v 
UJ IVI CT IVTlirr CT 1 1_1 1U7 UTTV TTT VV L'LLIVI rTTT UJJ I WJ 

lationo. The facility shall pay the p e nalty within 
60 days unless a hoaring is roquostod under G.S. 
Gbaptef 4^4» aft4 W NGAe 4* rOOOO. 
(g) WTion it is found tfeat a violations ©f G.S. 
131E 117 has occurr e d b«t corr e ctiv e action was 
tolton prior te- the date ©f disco vory, finos shall 
be oalculatod aft4 assess e d ift aocordanoo Vritb fe) 
afidff^ef this Rulo. 

(b) (h^ In matters of patient abuse, neglect or 
misappropriation the definitions shall have the 
meaning defined for abuse, neglect and exploita- 
tion respectively as contained in the North 
Carolina PROTECTION Q^ THfe ABUSED, 
NEGLECTED ©R EXPLOITED DIS.VBLED 
ADULT Ae*T Protection of the Abused, Neg- 
lected or Exploited Disabled Adult Act, G.S. 
108A-99 et seq. 

Authority G.S. I3IE-104; 13IE-I24; I3IE-129; 
42 U.S.C. 1396 r (e) (2) (B). 



7:3 NORTH CAROLINA REGISTER May I, 1992 



182 



PROPOSED RULES 



•^•k-k'k-k'k-k-k-k-k-k-k-k-k-k-k-k-k 



lyotice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services 
Commission/ Division of Social Services intends to 
amend rule cited as 10 NCAC 25 .0/02. 

1 he proposed effective date of this action is A u- 
gust I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on June 3. 1992 at the Albemarle Bldg., 
Room S64, 325 A'. Salisbury St.. Raleigh, NC. 

J\eason for Proposed Action: This rule is being 
amended in response to recent legislation requiring 
that each agency maintain a mailing list of notice 
of rulemaking and giving the agency the authority 
to charge a fee. 



Cc 



' omment Procedures: Comments may be pre- 
sented anytime in writing before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
rule by calling or writing to Donna Creech. Divi- 
sion of Social Services. 325 A'. Salisbury St., 
Raleigh, NC 27603, (919) 733-3055. 

CHAPTER 25 - SOCIAL SERVICES: 
PROCEDURE 

SECTION .0100 - PROCEDL RES: COMMISSION 

.0102 NOTICE 

(a) Upon a determination to hold a rulemaking 
proceeding, either in response to a petition or 
otherwise, the commission or its designee shall 
give ^ at least 15 days notice to all interested 
parties of a pubhc hearing on the proposed rule. 

(b) Any person or agency desiring to be placed 
on the mailing list for commission rulemaking 
notices may must file a request in writing, fur- 
nishing its name and mailing address, with: 

Special Assistant to the Director 

Division of Social Services 
Department of Human Resources 

325 North Salisbury Street 
Raleigh, North Carolmaj;z444 27603 
Persons or agencies on this mailing list will be 
billed annually. Names will be deleted from the 
mailing list if payment is not received by June 31) 
each \car. 4-bt» roquoot must ;: . tut(i the i i ubjoot 
ar e as within the authonty ef t^ oommisoion fof 
which notice i* rt'quei . tL ' d. 

f&f 4-he comini 'i f i ion &f ite dcjignoo ohall roviow 
i4* mailing fot- periodically aft4 metf write to afty 



poroon ©ft %h» fet te inquire whether that poroon 
wioheG t«- remain ©» tfe# li^ if fto rosponoo is 
rooeivod, that person may be r e moved from the 

fotr 

ef rulemaking proooodingG shall be seftt i» com 
munity, opocial int e r e st, govommont, trade, et 
prof e ssional organiaations fof pubhoation. 

fe^ UTion the agency intends to adopt a Fwle 
by reference, the rulemaking notic e shall includ e , 
ift addition to the roquiromonto stated m G.S. 
15QB 13(a): 
f44 ^he name aR4 address »f the agency ef 
organ ii'.ation v . 'hioh pro' i iously adopt e d 
the material, 
(4) the title emd identifying number »f previ 

ously adopted material, aft4 
f^ the date im4 e dition 94^ pr e s iously adopted 
material. 
(c) ff^ .\ny person desiring information in addi- 
tion to that provided in a particular rulemaking 
notice may contact: 

Special Assistant to the Director — 

Division of Social Services 
Department of Human Resources 

325 North Salisbury Street 
Raleigh, North Carolina^544427603 

Statutory Authority G.S. J43B-/53; I50B-2I.2. 



No 



otice is hereby given in accordance with G.S. 
I50B-2I.2 that the Social Services Commission 
(Division of Facility Services) intends to amend 
ndes cited as 10 NCAC 42C .2303 - .2304 and 
adopt rule cited as 10 NCAC 42C .3601. 

1 he proposed effective date of this action is Au- 
gust I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on June 3, 1992 at the Albemarle Bldg., 
Room S64, 325 North Salisbury St., Raleigh, NC 
27603. 

I\eason for Proposed Action: 10 NC.\C 42C 
.2303 - .2304. These rules were recommendations 
of the DFS HIV Disease Rules Workgroups be- 
cause residents in HI V designated domiciliary fa- 
cilities have special needs not accommodated by 
existing rules. 

10 NCAC 42C .3601. To strengthen the adminis- 
trative penalty process by incorporating it into a 
rule. 



183 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



Co 



■ omment Procedures: Comments may be pre- 
sented in writing any time before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of 
these rules by calling or writing to Donna Creech, 
Division of Social Services, 325 M. Salisbury St., 
Raleigh, NC 27611, (919) 733-3055. 

CHAPTER 42 - IND[VIDLAL AND FAMILY 
SUPPORT 

SUBCHAPTER 42C - LICENSING OF FAMILY 
CARE HOMES 

SECTION .2300 - SERVICES 

.2303 FOOD SERVICE 

(a) Preparation and Serving of Food: 

(1) Sufficient staff, space, and equipment must 
be provided for safe, sanitary food prepa- 
ration and service, including individual 
assistance to residents as needed; 

(2) The kitchen, dining, and food storage areas 
must be clean, orderly, and protected from 
possible contamination; 

(3) All meat processing must occur at a North 
Carolina Department of Agriculture ap- 
proved processing plant; 

(4) Table service, which means the place 
where the resident is served food, must 
include an appropriate place setting. 
Typically, the place setting is to include a 
minimum of a knife, fork, teaspoon, glass, 
napkin and a plate; 

(5) Hot food shall be served hot and cold food 
served cold and in a consistency to meet 
individual needs. If residents require as- 
sistance in eating, food shall be main- 
tained at serving temperature until 
assistance is provided. 

(b) Storage of Food: 

(1) Ail food being stored, prepared, and served 
must be protected from contamination; 

(2) Any home carming of fruits or vegetables 
must be processed using the pressure 
method; and 

(3) At least one week's supply of food must 
be in the home. 

(c) Menu Plaiming: 

(1) Menus must be planned in accordance 
with the requirements cited in Paragraph 
(d) of this Rule regarding daily service. 
Menus must be in writing with serving 
quantities specified. The menus are to be 
prepared at least one week in advance; 



(2) Menus must be dated and posted in the 
kitchen for the guidance of the food ser- 
vice staff; 

(3) Any substitutions made in the menu must 
be of equal nutritional value and must be 
recorded before being served to indicate 
the foods actually served to residents; 

(4) Meals shall be planned taking into account 
the food preferences and customs of the 
residents. Meat substitutes must be pro- 
vided to residents who choose to be 
vegetarians or who by reUgious or cultural 
preferences do not eat meat. However, 
an administrator may not impose 
vegetarian practices, or other rehgious or 
cultural food practices on a resident; 

(5) A copy of the NCDA Diet Manual must 
be in the home for use in its food service. 
Where there is a cluster of homes, one diet 
manual may be shared by the homes; 

(6) Menus as served and invoices or other 
appropriate receipts of purchases must be 
kept on file by the month for a year and 
are subject to periodic review by the 
monitoring and licensing agencies. 

(d) Daily Service: 

(1) Each resident is to be served a minimum 
of three nutritionally adequate, palatable 
meals a day at regular hours with at least 
10 hours between the breakfast and the 
evening meal. Variations from the re- 
quired three meals, menus and specified 
time intervals to meet individualized needs 
of residents in an HIV designated facility 
shall be plarmed or reviewed by a physi- 
cian and registered dietitian and docu- 
mented; 

(2) Suitable foods or liquids (e.g., fruit, milk, 
juices) must be offered between meals and 
shown on the menu as a snack; 

(3) Daily menus must include the following: 

(A) Homogenized or low fat milk or 
buttermilk. One cup (8 ounces) must be 
offered to each resident at least twice a 
day. Because milk is an important source 
of calcium and vitamin D, the resident 
must be encouraged to consume two cups 
( 16 ounces) of miUc daily as a beverage or 
as part of a meal (e.g., with dry cereal). 
Reconstituted dry milk or diluted evapo- 
rated milk may be used only in cooking 
and not for drinking purposes due to the 
risk of bacterial contamination during 
mi.xing and the lower nutritional value of 
the product if too much water is used; 

(B) Fruit. Two one-half cup ser\'ings (8 
ounces). A one-half cup (4 ounces) of 
citrus fruit or juice, and a one-half cup (4 



7:3 NORTH CAROLINA REGISTER May I, 1992 



184 



PROPOSED RULES 



ounces) of another variety of fresh, dried, 
or canned fruit must be ser\'ed. Citrus 
fruits include oranges and grapefruits. 
One orange or one-half grapefruit is con- 
sidered a serving. One cup of tomato 
juice or tomatoes may be used instead of 
citrus. Single strength carmed or frozen 
fruit juices which are vitamin C fortified 
may be substituted for a citrus fruit or 
juice if it is noted on the label that there 
is 100 percent of the recommended dietary 
allowance of vitamin C in each six ounces 
of juice; 

(C) Vegetables. Two one-half cup servings 
(8 ounces). One of these must be a dark 
green leafy or deep yeUow vegetable every 
other day or three times a week; 

(Dj Eggs. At least three times a week un- 
less limited by physician's orders: 

(E) Fats. Include butter, oil, or margarine. 
Restrict the use of seasoning with meat 
fats when there are older residents since 
older people fmd these difficult to digest; 

(F) Protein. At least two ounces of cooked 
meat must be served at both the noon and 
evening meal except a meat substitute 
equal to two ounces of cooked meat may 
be ser\'ed three times a week but not more 
than once a day. E.xamples of adequate 
meat substitutes are two eggs, two ounces 
of pure cheese, and one cup of dry beans 
or peas; 

Note: Bacon is considered a fat instead 
of a meat. 

(G) Cereals and Breads. At least four 
servings, whole grain or enriched (such as 
oatmeal, enriched rice, com meal, en- 
riched prepared cereals or bread). Exam- 
ples of one serving of bread are one slice, 
one biscuit, one roU, and one square of 
com bread. One serv^ing of cereal equals 
one-half cup cooked or three-fourths cup 
dry cereal. Cereal for the evening meal is 
not, by itself, acceptable due to the lack 
of variety and lack of needed nutrients; 
and 

(H) Water and Other Beverages. Water 
must be offered at each meal in addition 
to other beverages. Six to eight cups of 
liquids are needed daily to keep the body 
functioning properly; 

(4) Sandwiches shall not be served alone for 
any meal: and 

(5) Generally the energy intake for persons 
aged 51-75 should be 2400 calories for 
males and 1800 calories for females ac- 
cordmg to the 1980 recommended dietary 



allowances of the National Research 
Council, National Academy of Sciences, 
(e) Modified Diets: 

(1) .'Ml modified diet orders must be in writing 
from the resident's physician. Modified 
diet orders must be calorie or gram spe- 
cific unless standing orders, which include 
the definition of any modified diets, have 
been obtained from the physician and are 
on file in the home. 

(2) Menus for these modified diets must be 
planned or reviewed and signed (including 
registration number) by a registered 
dietitian; 

(3) The administrator is responsible for 
maintainmg an accurate and current list- 
ing of residents for whom modified diets 
have been prescribed and the modified 
diet ordered, for use by food service per- 
sonnel; 

(4) The administrator shall ask a physician or 
registered dietitian for answers to 
questions about the diets of residents; and 

(5) The administrator is resp>onsible for as- 
sisting residents who need modified diets 
in understanding and accepting these di- 
ets. 

Statutory Authority G.S. I3ID-2; I43B-I53. 

.2304 .ACTIVITIES PROGRAM 

(a) Each home must develop a program of ac- 
tivities designed to promote the residents' active 
involvement with each other, their families, and 
the community. Ths program is to provide so- 
cial, physical, intellectual, and recreational activ- 
ities in a plarmed, coordmated, and stmctured 
manner, using the Activities Coordinator's 
Guide, a copy of which each facility is required 
to have. When there is a cluster of homes, one 
Activities Coordmator's Guide may be shared by 
the homes. 

(b) The program must be designed to promote 
active involvement by all residents but is not to 
require any individual to participate in any ac- 
tivity against his will. 

(c) Each home must assign a person to be the 
activities coordinator, who meets the qualifica- 
tions specified in Rule .2006 of this Subchapter. 
The activities coordinator is resp>onsible for re- 
sponding to the residents' need and desire for 
meaningful activities, by: 

(I) Reviewing upon admission personal in- 
formation about each resident's interests 
and capabilities recorded on an individ- 
ualized index card or the equivalent. This 
card is to be completed from, at least, the 
information recorded on the Resident 



IS5 



7:3 AORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



Register, Form DSS-1865. It must be 
maintained for use by the activities coor- 
dinator for developing activities and is to 
be updated as needed; 

(2) Using the information on the residents' 
interests and capabilities to arrange for 
and provide plarmed individual and group 
activities for the residents. In addition to 
individual activities, there must be a min- 
imum of 10 hours of plaimed group ac- 
tivities per week. Homes designated for 
residents with HIV disease are exempt 
from the 10-hour requirement as long as 
the facihty can demonstrate each resi- 
dent's involvement in a structured volun- 
teer program that provides the required 
range of activities; 

(3) Preparing a monthly calendar of planned 
group activities which is to be in easily 
readable, large print, posted in a promi- 
nent location on the first day of each 
month, and updated when there are any 
changes; 

(4) Involving community resources, such as 
recreational, volunteer, religious, aging 
and developmentally disabled-associated 
agencies, to enhance the activities avail- 
able to residents. The coordinator may 
use the home's aides in carrying out some 
activities with residents; and 

(5) Evaluating and documenting the overall 
effectiveness of the activities program at 
least every six months with input from the 
residents to determine what have been the 
most valued activities and to eUcit sug- 
gestions of ways to enhance the program. 

(d) A variety of group and individual activities 
must be provided. The program is to include, 
at least, the following types of activities: 
(1) Social and Recreational Activities: 

(A) Opportunity must be available for both 
individual and group social and recre- 
ational activities sufficiently diverse to ac- 
commodate the residents' varied interests 
and capabilities. These activities empha- 
size increasing self-confidence and stimu- 
lating interest and friendships; 

(B) Individual activity includes one to one 
interaction in mutually enjoyable activity, 
such as buddy walks, card playing and 
horseshoes as well as activity by oneself, 
such as bird- watching, nature walks, and 
card playing; 

(C) Each resident must have the opportu- 
nity to participate in at least one planned 
group social or recreational activity 
weekly. A group activity is one which 
involves a number of residents in physical 



and mental interaction. Each resident 
shall be encouraged to participate in an 
activity which best matches his physical, 
mental and emotional capability. Such 
activities may include group singing, 
dancing, bingo, and exercise classes; 

(D) Each resident must have the opportu- 
nity to participate in at least one outing 
every other month. A resident interested 
in involving himself in the community 
more frequently shall be encouraged and 
helped to do so. The coordinator is to 
contact volunteers and residents' families 
to assist in the effort to get residents in- 
volved in activities outside the home; 

(E) If a resident cannot participate actively 
in community events, arrangements shall 
be made so that the more active residents 
can still participate in such outings. If 
there is a question about a resident's abil- 
ity to participate in an activity, the resi- 
dent's physician must be consulted to 
obtain a statement regarding the resident's 
capabilities; and 

(F) The activities plaimed and offered must 
take into account possible cultural differ- 
ences of the residents; 

(2) Diversional and InteUectual Activities: 

(A) Opportunity for both individual and 
group diversional and intellectual activities 
sufficiently diverse to accommodate the 
residents' varied interests and capabilities 
must be available. There must be ade- 
quate supplies and supervision provided 
to enable each resident to participate; 

(B) Individual activities emphasize individ- 
ual accomplishments, creative expression, 
increased knowledge and the learning of 
new skills. Such activities may include 
sewing, crafts, painting, reading, creative 
writing, and wood carving; 

(C) Each resident must have the opportu- 
nity to participate in at least one planned 
group activity weekly that emphasizes 
group accomplishment, creative ex- 
pression, increased knowledge, and the 
learning of new skills. Such activities may 
include discussion groups, drama, resident 
council meetings, book reviews, music 
appreciation, review of current events, and 
spelling bees; and 

(D) The activities planned and offered must 
take into account possible cultural differ- 
ences of the residents. 

(3) Work-Type and Volunteer Service Activ- 
ities: 

Each resident must have the opportunity 
to participate in meaningful work-type 



7:3 NORTH CAROLINA REGISTER May I, 1992 



186 



PROPOSED RULES 



and volunteer service activities in the 
home or Ln the community, but partic- 
ipation must be on an entirely voluntary' 
basis. Under no circumstances shall this 
activity be forced upon a resident. Resi- 
dents shall not be assigned these tasks in 
place of staff. Examples of work-type and 
volunteer services activities range from 
bedmaking, personal ironing, and assisting 
another resident, to more structured ac- 
tivities such as general ironing, making or 
repairing toys for children, telephone re- 
assurance, and gardening. 

Statutory Authority G.S. I3ID-2: I43B-I53. 

SECTION .3600 - .ADM1MSTR.\TIVE PENALTY 
DETERMINATION PROCESS 

.3601 ADMINISTR.\TIVE PENALTY 
DETERMIN.^TION PROCESS 

(a) The county department of social services 
shall identify areas of non-compliance resulting 
from an m\e5tigation or monitoring visit which 
may be \iolations of residents nghts contained 
in G.S 



relating to the proposed administrative penalty. 
Such information shall be made available to the 
department of social services in the county where 
the facility is located. The administrator shall 
have five working days from receipt of the no- 
tification to advise the Division as to whether the 
administrator, and authorized representative or 
both plan to meet with the Internal Review 
Committee. 

(e) If the administrator chooses to attend the 
meeting as provided in Paragraph (d) of this 
Rule, the Division shall notify representatives of 
the count\ department of social services and the 
Division of .Aang of the admmistrator's plans to 
meet with the Committee or anv change in the 
date or time of the meeting. Ihe agency that 
conducted the investigation shall be responsible 
for noti.f\int; the complainant, if any. 

(f) the Internal Review Committee shall re- 
\iew all Negative Action Proposals, any sup- 
porting evidence, and any additional information 
proNJded by the administrator that may have a 
beanng on the proposal such as documentation 
not a\ailable dunng the mvestigation or moni- 
tonng \isit, action taken to correct the violation 



1-^,1 D--1 21 mles contained in this Sub^ and plans to prevent t_he violation from recumng. 



chapter. Ihe areas of non-compliance shall be 
documented by the adult homes speaaList and 
the Netiative Action Proposal submitted to the 
Group Care Facilities Branch. The branch shall 
re\iew the proposal and forward it to the Internal 



RcMcw Committee. 



Pnor to recommending a 



penalty, the county department of soaal services 
shall pro\ide the administrator written notice of 
the recommendation. Ihe notice shall include 
copies of all documentation to be submitted to 
the Duision of Facility Services and extend to 
the administrator an opportunity to request a 
local conference with the county department, al- 
lowing the administrator 10 days to respond. 
The conference, if requested, shall mclude county 
department management staff. 

(b) 1 he Internal Re\iew Committee shall be 
comprised of three members: 

( 1 ) The assistant chief of the licensure Sec- 
tion, who shall scn.e as chairman; 



(g) Ihere shall be no taking of sworn testimony 
nor cross-examination of anyone dunng the 
course of Internal Resiew Committee meetings. 

(h) T ime shall be allowed during the Internal 
Review Committee meetings for mdi\idual pres- 
entations, the total for which shall normally be 
one hour for each facility where the violations 
took place, but shall not exceed two hours. The 
amount of time allowed, up to two hours, shall 
be at the discretion of the Internal Re\iew 
Committee chair. The order m which presenters 
shall speak and length of presentations shall be 
at the discretion of the chair. 

(jl If it is determined that the administrator has 
violated applicable rules or statutes, the Internal 
Re\iew Committee shall recommend an admin- 
istrative penalty t\pe and amount for each vio- 
lation pursuant to G.S. 1.31D-.M. I he Di\ision 
shall notify the administrator by certified mail of 



the Committee's decision withm five working 
(2) The head of the Group Care Facilities days following the Internal Re\iew Committee 



Branch: and 
(3) A third partv selected bv the chief of the 
Licensure Section. 

(c) The Di\ision of Facility Services shall no- 
tify the administrator by certified mail within 10 
working davs from the time the proposal is re- 
ceived by the Internal Re\iew Committee that 
an administrative penalty is being considered. 

(d) The administrator shall have 10 working 
days from receipt of the notil'ication to provide 
the Division an\ additional wnttcn information 



meeting. Copies of the letter to the administrator 
shaU be forwarded bv the Division to all parties 
involved with the penalty recommendation. The 
agency that conducted the in\estigation shall be 
responsible lor notifying the complainant, if any, 
(i ) If the recommended penalty is classified as 
r\pe 13 but is not a repeat violation (as defined 
by C j . S . l.MD-34). the administrator may accept 
the recommendation and notif\ the Division by 
certitied mail withm fi\'e working days following 
receipt of the recommendation. If the penalty is 



187 



7:i NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



accepted, the administrator has 60 days from re- 
ceipt of the recommendation to pay the penalty. 

(k) If the recommended penalty is a Type A 
violation; is a Type B violation for which a 
monetary or non-monetarv penalty was assessed 
during the previous 12 months or within the time 
period of the previous licensure inspection, which 
ever time period is longer; or is a 1 ype ^ vio- 
lation as provided in Paragraph (i| of this Rule 
but is not accepted by the administrator, the 
Internal Review Committee shaU forward to the 
Penalty Review Committee the penalty recom- 
mendation, the rationale for the recommendation 
and all information reviewed by the Internal Re- 
view Committee. 

(1) The Penalty Review Conmiittee meets 
monthly, if there are administrative penalty rec- 
ommendations from the Internal Review Com- 
mittee. The Penalty Review Committee may 
agree with or recommend changes to the Internal 
Review Committee's recommendations. If the 



Information, 407 North Blount Street, Raleigh, 
North Carolina 27601. 



Internal Review Committee, the Division shall 
notify the administrator the day of the Penalty 
Review Committee meeting. 

(m) Recommendations by the Penaltv Review 
Committee shall be forwarded to the Chief of 
Licensure who shall ha\e live working days from 
the date of the Penalty Review Committee 
meeting to determine and impose administrative 
penalties for each violation as provided by G.S. 
13 ID- 34 and notify the administrator by certified 
mail. 

(n) The administrator shall have 60 days from 
receipt of the notification to pay the assessment 
as provided by G.S. 13 ID- 34 or 30 days to ap- 
peal the decision as provided by G.S. 150B-22. 
The Division shall notify the Attorney General's 
Office of any outstanding assessments. 



Statutory Authority 
I43B-I53. 



G.S. I3ID- 



I3ID-34: 



TITLE 12 - DEPARTMENT OF JUSTICE 

I\ otice is hereby given in accordance with G.S. 
1 508-21. 2 that the N.C. Department of Justice, 
State Bureau of Investigation, Division of Crimi- 
nal Information intends to amend nde(s) cited as 
12 NCAC 4F .0601: and adopt rule(s) cited as 
12 NCAC4F .0602 - .0604. 

1 he proposed effective date of this action is Au- 
gust 3. 1992. 

1 he public hearing will be conducted at 9:00 
a.m. on .May 19, 1992 at the Di\ision of Criminal 



R 



easons for Proposed .4 ctions: 



12 NCAC 4F .0601 - To add the acronym of 
"AFIS" for the Automated Fingerprint Identifi- 
cation System. 

12 NCAC 4F .0602 - To state the procedural steps 
necessary for an agency to obtain an AFIS termi- 
nal. 

12 NCAC 4F .0603 - To state the necessity of each 
eligible agency signing an AFIS User Agreement, 
and abiding by the terms thereof. 

12 NCAC 4F .0604 - To state the data that is 
available from the AFIS System. 



recommendations are different from those of the (^, 



omment Procedures: Comments may be sub- 
mitted in writing, or may be presented orally at 
the public hearing. Written comments should be 
submitted to E. K. Best, Division of Criminal In- 
formation, 407 N . Blount Street, Raleigh, North 
Carolina 27601. The comment period is open 
until May 31, 1992. 

CHAPTER 4 - DIVISION OF CRIMINAL 
INFORMATION 

SUBCHAPTER 4F - SECURITY AND PRIVACY 

SECTION .0600 - AUTOMATED FINGERPRINT 
IDENTIFICATION SYSTEM 

.0601 AUTOMATED FINGERPRINT 
IDENTIFICAI ION SYSTEM 

(a) Agencies which meet the requirements of 
Subchapter 4E Rule .0201(a) of this Chapter 
have the capabihty to access the SBI's Auto- 
mated Fingerprint Identification System for 
criminal justice purposes. 

(b) Direct access may be obtained by submit- 
ting a letter of request to the SBI Assistant Di- 
rector for DC I. 

(c) The following data is available and may be 
used to make comparisons and/or obtain CCH 
data: 

(1) fmgerprint classification; 

(2) fingerprint minutiae; 

(3) fmgerprint images; and 

(4) state identification number. 

(d) WTien the state identification number is 
used to obtain CCH data, dissemination require- 
ments outlined in Rule .0401 Paragraphs (c) and 
(d) of this Subchapter must be followed. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



188 



PROPOSED RULES 



(e) The acronym used for the SBI's Automated 
Fingerprint Identification System shall be the 
Alls. 



****************** 



Statutory Authority 
1 14-10. 1; 114-16. 



G.S. I5A-502: 114-10: 



.0602 ELIGIBILITY FOR FULL OR LIMITED 
ACCESS TO THE AFIS NETWORK 

fa) Agencies which meet the requirements of 
Subchapter 4E Rule .(J2Ul(a) of thus Chapter 
shall be eligible to access the AMS for criminal 
justice purposes. 

(b) A request for direct access shall be submit- 
ted in writing to the SBl Assistant Director for 
PCI. 

(c) Any request for an .\FIS terminal and ac- 
cess must be approyed by the SBl DCl Adyisor\' 
Polic\- Board. 

Statutory Authority G.S. 1/4-/0; //4-10.I. 

.0603 LSER AGREEMENT 

(a) Each eligible agency under Rule .0201 of 
this Subchapter requestmg an .AFIS terminal 
shall sign an AFIS User Agreement certifym.g 
that the agency head has read, and understands 
the requirements for secunty within DCI, and 
that the agenc>' head will uphold the agreement, 
and abide b> the standards and guidelines out- 
hned in the L ser .Agreement. 



(b) A current copy of the L'ser Agreement may 
be reyievsed at 407 North Blount Street. Raleigh, 
North Carolina. 

(c) L pen determination that a \iolation of the 
User .Agreement has occurred, requirements out- 
hned in Rule .0201 Paragraphs (a) and (b) of this 
Subchapter must be followed. 

Statutory Authority G.S. /5A-502; //4-/0: 
/ 14-/0./: //4-/6. 

.0604 A\ AILABLE DATA 

(a) The following data is ayailable and may be 
used to make compansons and or obtain CCH 
data: 

ill 
Ql 
ill 
Lii 

(b) When the state identification number is 
used to obtam CCH data, dissemination require- 
ments outUned m Rule .0401 Paragraphs (c) and 
(d) of this Subchapter must he followed. 



fingerprint classification; 
fmgerprmt mmutiae; 
tingerprint miages: and 
state identification number. 



Statutory .-iuthority 
/I4-/0.'/: //4-/6. 



G.S. /5A-502; /14-/0: 



No 



otice is hereby given in accordance with G.S. 
1 SOB- 21 .2 that the North Carolina Alarm Systems 
Licensing Board intends to amend rule(s) cited 
as /2 XCAC J/ .020/. 

1 he proposed effective date of this action is Au- 
gust 3, 1992. 

1 he public hearing will be conducted at 11:00 
a.m. on June 5. 1992 at the State Bureau of In- 
vestigation, Conference Room, 3320 Old Garner 
Road, Raleigh, \C 27626-0500. 

l\eason for Proposed Action: To extend length 
of criminal record search from 24 months to 48 
months. 



Co 



■ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments until the 
hearing. Written comments must be delivered to 
or mailed to: Mr. James F. Kirk, .\'C Alarm 
Systems Licensing Board, 3320 Old Garner Rd., 
P.O. Box 29500. Raleigh. XC 27626-0500. 

CHAPTER 11 - N.C. ALARM SYSTEMS 
LICENSING BOARD 

SECTION .0200 - PROYISIONS FOR 
LICENSEES 

.0201 APPLIC.\TION FOR LICENSE 

(a) Each applicant for a license shall complete 
an application form proyided by the Board. This 
form and one additional copy shall be submitted 
to the administrator and shall be accompanied 
by: 

( 1 ) one set of classifiable fingerprints on an 
appUcant card proyided by the Board; 

(2) two recent head and shoulders color pho- 
tographs of the applicant of acceptable 
quality for identification one inch by one 
inch in size: 

(3) statements of the results of a local criminal 
history records search by the city-county 
identification bureau or clerk of superior 
court in each county where the applicant 
has resided within the immediate preced- 
ing 34 4S months; and 

(4) the applicant's application fee. 

(bi Each apphcant must proyide eyidence of 
high school graduation either by diploma, 
G.E.D. certificate, or other acceptable proof. 



1S9 



7:3 SORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(c) Each applicant for a branch office license 
shall complete an application form provided by 
the Board. This form and one additional copy 
shall be submitted to the administrator and shall 
be accompanied by the branch office apphcation 
fee. 

Statutory Authority G.S. 74D-2; 74D-3; 74D-5; 

74D-7. 

TITLE 15A DEPARTMENT OF 

EW IROWIENT, HEALTH, AND 

NATURAL RESOURCES 



1\ otice is hereby given in accordance with G.S. 
150B-2I.2 that the EHNR - Division of Emiron- 
mental Management intends to amend rules cited 
as ISA NCAC 2C .0101 - .0103, .0105, .0/07 - 
.0114. .0116, .0118 - .0119; 2L .0107. 

1 he proposed effective date of this action is 
September 1, 1992. 

1 he public hearings will be conducted at the fol- 
lowing locations, dates and times: 

NEW BERN 

May 18, 1992 

7:00 p.m. 

Superior Court, 2nd Floor 

Craven County Courthouse 

RALEIGH 

May 26. 1992 

7:00 p.m. 

Ground Floor Hearing Room 

Archdale Building 

512 N. Salisbury Street 

HICKORY 

May 28, 1992 

7:00 p.m. 

A uditorium 

Catawba Valley Community College 

I\eason for Proposed Action: ISA NCAC 2C 
.0101 - .0103, .0105, .0107 - .0114, .0116, .0118 - 
.0119. Fhe proposed amendments to ISA NCAC 
2C will amend the Well Construction Rules re- 
garding permit requirements, variances, casing in- 
stallation and grouting, and reporting: and will 
establish fees for well driller registration. 
ISA NCAC 2L .0107. Modify compliance bound- 
ary requirements so that permittees can maintain 
fixed boundary after subdivision; com-eyance of 
property. 



Co 



comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted through May 31, 
1992. Please submit comments to Mr. David 
Hance, Division of Environmental Management, 
Groundwater Section, P.O. Box 29535, Raleigh, 
NC 27626-0535, (919) 733-3221. Please notify 
Mr. Hance prior to the public hearing if you desire 
to speak. Oral presentation lengths may be lim- 
ited depending on the number of people that wish 
to speak at the public hearing. 

IT IS VERY IMPORTANT THAT ALL INTER- 
ESTED AND POTENTIALLY AFFECTED PER- 
SONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS OR AGEN- 
CIES MAKE THEIR VIEWS AND OPINIONS 
KNOWN TO THE DEPARTMENT THROUGH 
THE PUBLIC HEARING AND COMMENT 
PROCESS, WHETHER THEY SUPPORT OR OP- 
POSE ANY OR AUL PROVISIONS OF THE 
PROPOSED RULES. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2C - WELL CONSTRUCTION 
STANDARDS 

SECTION .0100 - CRITERIA AND STANDARDS 

APPLICABLE TO WATER SUPPLY AND 

CERTAIN OTHER TYPE WELLS 

.0101 GENERAL PROVISIONS 

(a) Authorization. The North Carolina Envi- 
ronmental Management Commission is required, 
under the provisions of Chapter 87, Article 7, 
Section 87, General Statutes of North Carolina 
(short title; North CaroUna Well Construction 
Act) to adopt appropriate rules aftd rogulationg 
governing the location, construction, repair, and 
abandonment of wells, and the installation and 
repair of pumps and pumping equipment. 

(b) Purpose. Consistent with the duty to safe- 
guard the public welfare, safety, health, and to 
protect and beneficially develop the ground water 
resources of the state, it is declared to be the 
policy of this state to require that the location, 
construction, repair and abandonment of wells, 
and the installation of pumps and pumping 
equipment conform to such reasonable standards 
and requirements as may be necessary to protect 
the public welfare, safety, health, and ground 
water resources. 

Statutory Authority G.S. 87-87. 

.0102 DEFINITIONS 



7:3 NORTH CAROLINA REGISTER May I, 1992 



190 



PROPOSED RULES 



As used herein, unless the context otherwise re- 
quires: 

(1) "Abandon" means to discontinue the use 
of and to seal the well according to the re- 
quirements of Rule .01 13 of this Section. 

(2) "Access port" means an opening in the 
weU casing or weU head installed for the 
primary purpose of determining the position 
of the water level in the well. 

(3) "Agent" means any person who by mutual 
and legal agreement with a well owner has 
authority to act in his behalf in executing 
apphcations for permits. The agent may be 
either general agent or a limited agent au- 
thorized to do one particular act. 

(4) "ASTM" means the American Society for 
TestLnii and .Materials. 



(5) (4^ "Casing" means pipe or tubing con- 
structed of specified materials and having 
specified dimensions and weights, that is in- 
stalled in a borehole, during or after com- 
pletion of the borehole, to support the side 
of the hole and thereby prevent caving, to 
allow completion of a well, to prevent for- 
mation material from entering the well, to 
prevent the loss of drilling fluids into per- 
meable formations, and to prevent entry of 
undesirable water. 

(6) fi^ "Commission" means the North 
Carolina Environmental Management 
Commission or its successor, unless other- 
wise indicated. 

(7) (4^ "Consolidated rock" means rock that is 
firm and coherent, solidified or cemented, 
such as granite, gneiss, limestone, slate or 
sandstone, that has not been decomposed 
by weathering. 

(8) (4^ "Contamination" means tfe© ae* ef ift- 
troducing iftto water foreign materials of 
such nature, quality, and quantity as to 
cause degradation of the quality of the water. 

(9) "Department" means the Department of 
l-n\ironment, Health, and Natural Re- 
sources. 

( 10) {^ "Designed capacity" shall mean that 
capacity that is equal to the rate of discharge 
or yield that is specified prior to construction 
of the well. 

(11) f3-)-f "Director" means the Director of the 
Dnision of Environmental Management. 

(12) (-^ "Division" means the Division of En- 
vironmental Management. 

(13) (% "Domestic use" means water used for 
drinking, bathing, household purposes, hve- 
stock or gardens. 

( 14) "GPM " and "GPD ' mean gallons per 
minute and gallons per dav. respectivelv. 



(15) fW^ "Grout" shall mean and include the 
following: 
(a) "Neat cement grout" means a mixture of 
not more than six gallons of clear, non- 
polluted water to one 94 pound bag of 
Portland cement, -t^ te five p e rc e nt, hf 
w e ight, ef b e ntonit e efey fft#r ^ \imd ie- 
improv e flow aft4 r e duc e shrinlvag e . 
"Sand cement grout" means a mixture of 
not more than two parts sand and one 
part cement and not more than six gallons 
of clear, non-polluted water per 94 pound 
bag of Portland cement. 
"Concrete grout" means a mixture of not 
more than two parts gravel to one part 
cement and not more than six gallons of 
clear, non-polluted water per 94 pound 
bag of Portland cement. One hundred 
percent of the gravel must pass through a 
one-half inch mesh screen. 
"Gravel cement grout, sand cement grout 
or rock cuttmg cement grout" means a 
mixture of not more than two parts gravel 
and sand or rock cuttings to one part ce- 
ment and not more than six gallons of 
clear, non-polluted water per 94 pound 
bag of Portland cement. 
"Bentonite grout" means the mixture of 



(b) 



(c) 



(d) 



(el 



no less than one and one-half pounds of 
commercial granulated bentonite with 
sutficient clear, non-polluted water to 



m 



produce a grout weighing no less than 
eleven (11) pounds per gallon of mixture. 
Non-organic, non-toxic substances may 
be added to improve particle distnbution 
and pumpability. Bentonite grout may 
only be used in those instances where 
specifically approved in this Section. 
"Specialty grout" means a mixture 



non-orgaruc, 
characteristics 



of 

non-toxic materials with 

chemical- 



ot expansion, 
resistance, rate or heat of hydration, 
viscosity, density or temperature- 
sensitivity applicable to specific grouting 
requirements. Speciality grouts may not 
be used without prior approval by the 
Director. 



(16) f44^ "Liner pipe" means pipe that is in- 
stalled inside a completed and cased well for 
the purpose of sealing off undesirable water 
or for repairing ruptured or punctured casing 
or screens. 

( 17) f4^ "Monitoring well" means any well 
constructed for the primary e* incidental 
purpose of obtaining i .' . ubi i urt'ac(3 samples of 
groundwater wator or other liquids for ex- 
amination or testing, or for the obscr\-ation 
or measurement of groundwater levels. This 



191 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



definition excludes lysimeters, tensiometers, 
and other devices used to investigate the 
characteristics of the unsaturated zone. 
(44) "Oboonation woU" means aHy well con 
otruct e d fof tfe» purpooo ef obtairung 
groundwater levdt informati ea only. 

(18) (44) "Owner" means any person who holds 
the fee or other property rights in the well 
being constructed. A well is real property 
and its construction on land rests ownership 
in the land owner in the absence of contrary 
agreement in writing. 

(19) (3^ "Pitless adapter ««it i* a do^ico adapt- 
ers" or "pitless units" are devices specifically 
manufactured to the standards sp>ecified un- 
der Rule .0107(1) (4) (5) of this Section for 
the purpose of allowing a subsurface lateral 
connection between a well and plumbing 
appurtenances. 

(20) (44) "Public water system" 

(a) "Public water oyotem" means a water sys- 
tem as defmed in ^SA NCAC 18C .0702 
(Rules Governing Pubhc Water SuppUes). 
fof the provision, to tfee public, ef pip e d 
>i i 'ater fof human coDGumption if such 
syst e m has at- least 4-5 seP i 'ioo connootions 
ef regularly sep i ^ e s aft as'erage ef at- least 
34 individuals daily at- l e ast 6ft days e«t 
ef the y e ar. Such t e rm includes: 
(4) afty ooUootion, treatment, storage, aed 
distribution facihty under control ef t4w 
operator ef such system aftd used prima 

(ii) afty coll e ction ef pro treatment storage 
facility Hot- under such control ' ■ shich is 
us e d primarily i» connection witfe such 
system. 
(fe) A public water system is e ith e r a "com 
munity water system" ef a "non 
community water system": 

(i) "Community ' ■ ■ I 'ator syst e m" means a 
public water system which s e r^' e s at- least 

residents ef regularly s e rves at- least 35 
year round r e sidents. 
(ii) "Non community water system" moans 
a public water syst e m ' ■ ' ■ hich is aet- a 
community water system. 

(21) (-i4) "Recovery well" means any well con- 
structed for the purpose of removing con- 
taminated groundwater or other liquids from 
the subsurface. 

(22) "Settleable sohds" means the volume of 
solid particles in a well-mixed one liter sam- 
ple which will settle out of suspension, in the 
bottom of an Imhoff Cone^ after one hour. 



physically located, including adjacent or 
nearby land used in connection with the fa- 
cility, activity or situation. 

(24) (4-^ "Speciiic capacity" means the yield of 
the well expressed in gallons per minute per 
foot of draw-down of the water level 
(gpm/ft.-dd). 

(25) fW) "Static water level" means the level at 
which the water stands in the well when the 
well is not being pumped and is expressed 
as the distance from a fixed reference point 
to the water level in the well. 

(26) "Suspended sohds" means the weight of 
those sohd particles in a sample which are 
retained by a standard glass rmcrofiber lllter, 
with pore openings of one and one-half 
microns, when dried at a temperature of 103 
to 105 degrees Fahrenheit. 

(27) "Temporary well" means a monitor weU, 
or a weU that is constructed to determine 
aquifer characteristics, and which wiU be 
properly abandoned or converted to a per- 
manent well within five days (120 hours) of 
completion of driUing of the borehole. 

(28) "Turbidity" means the cloudiness in water, 
due to the presence of suspended particles 
such as clay and sdt, that may create esthetic 
problems or analylical difficulties for con- 
tamination. Turbidity measured in 
Nephelometric Turbidity Units (NTIJ) is 
based on a comparison of the cloudiness in 
the water with that in a specially prepared 
standard. 

(29) "WeU" means any excavation that is 



(23) (4^ "Site" means the land or water area 
where any facility, activity or situation is 



cored, bored, drilled, jetted, dug or otherwise 
constructed for the purpose of locating, 
testing, developing, draining or recharging 
any groundwater reservoirs or aquifer, or 
that may control, divert, or otherwise cause 
the movement of water from or into any 
aquifer. Provided, however, this shall not 
include a well constructed by an individual 
on land which is owned or leased by him, 
appurtenant to a single-family dwellmg, and 
intended for domestic use (including house- 
hold purposes, farm Livestock or gardens). 

(30) (3ft^ "Well capacity" shall mean the maxi- 
mum quantity of water that a well wiU yield 
continuously. 

(31) f34) "Well head" means the upper terminal 
of the well including adapters, ports, valves, 
seals, and other attachments. 

(32) (43) "Well system" means two or more 
wells serving the same facihty. 

Statutoiy Authority G.S. S7-S5; 87-87; 
143-214.2; 143-215.3. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



192 



PROPOSED RULES 



.0103 REGISTRATION 

(a) Well Driller Registration; 

(1) Every person, firm or corporation engaged 
in the business of drilling, boring, coring 
or constructing wells in any maimer with 
the use of power machmery in the state 
shall register annually with the depart- 
ment. 

(2) Registration shall be accomplished, during 
the period from January 1 to January 31 
of each year, by completing and submit- 
ting to the department a registration ap- 
phcation form provided by the 
department for this purpose. 

(3) A non-refundable processing fee, in the 
form of a check or money order made 
payable to N.C. Department of Hnviron- 
ment, Health, and Natural Resources, 
shall be submitted with each registration 
application form. Fees, for the year in 
which the registration will be valid, are as 
follows: 

(A) I-'or renewal of registration by any per- 
son, firm or corporation having registered 
at any time durmg the fi\'e calendar years 
prior to the date of application: 

rij fifty dollars (S50.0U) for applications 

postmarked prior to F'ebruarv \^ and 
(ii) sixty dollars (S60.Q()) for application 
postmarked after J:muar\' 31. 

(B) 1 or registration bv an\' person, firm or 
corporation that did not register at any 
time dunng the five calendar years prior 
to the date of application: 

ri) fifty dollars ($50.(10) for applications 
postmarked pnor to February jj^ or 

(li) for each succeeding calendar month 
after J^muaPt , the fee shall be reduced 
by three dollars ($3.00) from that due 
in the proceeding month. As examples, 
the fee for applications postmarked 
February j_ through 29 would be forty- 
seven dollars ($47.00). while the fee for 
applications postmarked November \_ 
through 30 would be twenty dollars 
($20.00). 

(4) An apphcation is incomplete until the re- 
quired processing fee has been received. 
Incorrect or incomplete applications may 
be returned to the apphcant. 

(5) fi+ Upon receipt of a properh completed 

application form, the applicant will be is- 
sued a certificate of registration. 

(b) Pump Installer Registration: 

( 1 ) All persons, firms, or corporations engaged 
in the business of installing or repairing 
pumps or other equipment in wells shall 
register bi-annually with the department. 



(2) Registration shall be accomplished, during 
the period from April 1 to April 30 of ev- 
ery odd-numbered year, by completing 
and submitting to the department a regis- 
tration form provided by the department 
for this purpose. 

(3) Upon receipt of a properly completed ap- 
plication form, the applicant will be issued 
a certificate of registration. 

Statutory Authority G.S. 87-87; 1 43-2 1. 3 (a) 
(la): 143-355 (e). 

.0105 PERMITS 

(a) It is the fmding of the Commission that the 
entire geographical area of the state is vulnerable 
to groundwater poUution from improperly lo- 
cated, constructed, operated, altered, or aban- 
doned non-water supply wells and water supply 
wells not constructed in accordance with the 
standards set forth in Rule .0107 of this Section. 
Therefore, in order to insure reasonable pro- 
tection of the groundwater resources, prior per- 
mission from the Division must be obtained for 
the construction of the types of wells enumerated 
in Paragraph (b) of this Rule. 

(b) No person shall locate or construct any of 
the followmg wells until a permit has been issued 
by the Director: 

(1) any water- well or well system with a de- 
sign capacity of 100,000 gallons per day 
(gpd) or greater; 

(2) any well added to an existing system where 
the total design capacity of such existing 
well system and added well will equal or 
exceed 100,000 gpd; 

f^ afty iest- v¥ell if tbe dcoign capacity &f the 
production well »f w^U system VriH h% 
100,000 gp4 Bf gr e at e r; 

(3) (4) any monitoring weU, constructed to as- 

sess the impact of an activity not permit- 
ted by the state, when installed on 
property other than that on which the 
unpermitted activity took place; 

(4) (-^ any recovery well; 

(5) f^ any well intended for the recovery of 

minerals or ores; 
(^ afty goo physical exploration w e ll; 

(6) f*} any oil or gas exploration or recovery 

weU; ' 

(7) {^ any well for recharge or injection pur- 

poses; 
f+O^ aw cathodio protootion well; 

(8) f4-l-) any well with a design deviation from 

the standards specified under the rules of 
this Subchapter. 
(«) Monitoring wells associated witfe a 
wastewater treatment aft4 disposal facility fof 



193 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



i . vhich a pormit must be obtain e d from the io- 
partmont may be p e rmittod as part »f tbat facil 
rtyt pro' i idod, hov i ovor, tbat the permit applicant 
comply with all- provisions ef tbi« Subchapter 
including construction otandardo e>ftA report Lng 
roquiroments. 

(c) (4^ The CommiDsion Director may delegate, 
through a Memorandum of Agreement, to an- 
other stat e governmental agency, the authority to 
permit wells that are an integral part of a facility 
requiring a permit from the agency. Provided, 
however, that the permittee comply with all pro- 
visions of this Subchapter, including construction 
standards and the reporting requirements as 
specified in Rule .01 14. In the absence of such 
agreement, all wells specified in Paragraph (b) of 
this Rule require a well construction f)ermit in 
addition to any other permits. 

(d) (e) An appUcation for a permit shall be 
submitted by the owner or his agent. i» duph 

^^^^y f f-\ ti^A -^ '^*~^'"' *^ r-r^ jayit ^^^ T j-i r-f>^ c- Til r-w-\ t i.- 1-na.i-J V-»t > tl^^ 

dopartment. aft4 shall include the following: In 
the event that the permit applicant is not the 
owner of the property on which the well or well 
system is to be constructed, the permit applica- 
tion must contain written approval from the 
property owner and a statement that the apph- 
cant assumes total responsibiUty for ensuring that 
the well(s) will be located, constructed, main- 
tained and abandoned in accordance with the re- 
quirements of this Subchapter. 

(e) The apphcation shall be submitted in du- 
plicate to the Division, on forms furnished by the 
Division, and shaU include the following: 

(1) For all weUs: 

(A) the owner's name (facihty name); 

(B) the owner's mailing address (facility 
address); 

(C) description of the well type and activity 
requiring a permit; 

(D) facility location (map); 

(E) site f4a» showing location ©f aJi sourc e s 
©f potential sources e( groundwater con 
tomination aft4 locations e( proposed 
woUs; a map of the facility and general site 
area, to scale, showing the locations of: 

(i) all property boundanes, at least one 
of which is referenced to a minimum 
of two landmarks such as identified 
roads, intersections, streams or lakes; 

(ii) all existing wells, identified by type 
of use, within the property boundaries; 

(iii) the proposed well or well system; 

(iv) any test bonngs; and 
(\) all sources of known or potential 
groundwater contamination (such as 
septic tank systems; pesticide, chemical 
or fuel storage areas; animal feedlots; 



landfills or other waste disposal areas) 
within 500 feet of the proposed well 
site; 

(F) location aft4 description ei e xisting wells 

system; the well drilling contractor's 
name, if known; 
fG^ location ef am- test- borings; 

(G) (44) construction diagram of the pro- 
posed W ' L ' lls well(s) including specifications 
describing all materials to be used, meth- 
ods of construction and means for assur- 
ing the integrity and quality of the finished 
well(s). 

(2) For water supply wells or well systems 
with a designed capacity of 100,000 gpd 
or greater the apphcation shall include, in 
addition to the information required in 
Subparagraph (e)(1) of this Rule: tbe 
apphcation shall include: 

(A) the number, yield and location of ex- 
isting weUs in the system; 

(B) the design capacity of the proposed 
well(s); 

(C) any other information that the depart 
ment Division may reasonably deem nec- 
essary. 

(3) For those monitoring weUs aft4 r e oovop/ 
woUs with a design deviation from the 
specifications of Rule .0108 of this Sec- 
tion, in addition to the information re- 
quired in Subparagraph (e)(1) of this 
Rule: 

(A) a description of the subsurface condi- 
tions sufficient to evaluate the site. Data 
from test borings, wells pumping tests, 
etc., may be required as necessary; 

(B) a description of the quantity, character 
and origin of the contamination; 

(C) a justification for the necessity of the 
design deviation; and 

(D) fG) any other information that the 4e- 
partment Division may reasonably deem 
necessary. 

(4) For those recovery wells with a design 
deviation from the specifications in Rule 
.0108 of this Section, in addition to the 
information required in Subparagraph 
(e)(1) and Parts (e)(3)(A). (B) and (C) of 
this Rule, the apphcation shah describe 
the disposition of any fluids reco\'ered if 
the disposal of those fluids will have an 
impact on any existing wells other than 
those installed for the express purpose of 
measuring the cffecti\cncss of the recovery' 
weU(s). 

(f) In the event of an emergency, monitoring 
wells and or recover)' wells ma)' be constructed 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



194 



PROPOSED RULES 




after verbal approval is provided by the Director (g) It shall be the responsibility of the well 

or his delegate. Aftw Ae foe* After-the-fact ap- owner or his agent to see that a permit is secured 

plications shall be submitted by the driller or prior to the be.gjnning of construction of any well 

owner within ten days alter construction begins. J^^ ^^^^'^^ a permit is required under the rules of 

The apphcation shaU include construction details ** ^ Subchapter, 

of the monitoring weU(s) and/or recovery weU(s). statutory Authority G.S. 87-87. 

.0107 ST.ANDARDS OF CONSTRLCTION: WATER-SLPPLY WELLS 

(a) Location. 

( 1) The well shall not be located 

(A) in an area »»*• generally subject to flooding. Areas which have a prof)ensity for flooding in- 
clude those with concave slope, alluvial or colluvial soils, gullies, depressions, and drainage ways; 

(©^ at- a minimum horiiTontal distanco ef §0 feet- from afty- wator tight Gowago aH4 liquid waoto 
coUoction facihty (such a* east ifeft pipo) oxcopt m the ease »f ■ ■ ' ■ 'ells intondod fof a oinglo family 
dwelling where it is fiet feasible te obtain 50 feet ooporation botwoon a well and a V i 'ator tight 
Liquid waste coll e ction facility booauoo ©f l»t s«e ef other fixed conditiono, tl*e horizontal sepa 

rTTTT^TTT U U I U I ^-T.' U I ITXTI l,^J 1 1 H-' rTWT^U 1 1 TJ III ^^WTTJU^f IVJ 1.1 IJ I \XJ I VTT^ (_' <Jl LI I I l\J lAlLnj IV-T^J IIIUII J ' I^^^^ 1 

1 1 l\J ^^\J TT ^'1 IXIIl^ r^ I.^J11JII Ul^'l\.'U Lfl lUUJV 1_^1 \J^^1 L' I L.HJ , U U ^' 1 1 Cr^ ^'UU I rTTTTT cTTTT^y T1 1111 ICTt^TC^T UI 1 

joints: 

afty disposal facility (such a* a septic tafik aft4 drain fields) aft4 aw other oouroo ©f existing »f 
potential pollution »f contamination, oxcopt i» ti*e ea^ie »f wells intondod fof a single family 
dss^elling where it i* Ret feasible te- obtain -WO feet horizontal s e paration botwoon a weU aft4 a 
source because ef let see ef other fixed conditions, tbe separation distance shall be maximum 
feasible distanc e , b«t i«- »» ease less than ^ feetr 

(2) The minimum horizontal separation between a well, intended for a single-family residence or 
other non-public water system, and potential sources of groundwater contammation shall be as 
follows unless otherwise specified: 

(A) Septic tank and drainficld 100 fL 

(B) Other subsurface ground absorption waste disposal system 100 ft 

(C) Industrial or mumcipal sludge-spreading or wastewater-irrigation sites 100 ft. 

(D) Water-tight sewage or liquid-waste collection or transfer facility 50 ft. 

(E) Other sewage and Liquid-waste collection or transfer facility 100 ft. 

(F) Cesspools and privies 100 fL 

(G) /Vnimal leedlots or manure pUes 100 fL 

(II) Fertiliy.er, pesticide, herbicide or other chemical storage areas 100 ft. 

(1) Non-hazardous waste storage, treatment or disposal lagoons 100 ft. 

ijj Sanitary landfills 500 ft. 

(K) Other non-hazardous solid waste landfills 100 fL 

(I.) Animal bams 100 fL 

(\1) Building foundations 50 fL 

(N) Surface water bodies 50 fL 

(O) (Chemical or petroleum fuel underground storage tanks regulated under 15A NCAC 2N: 

(i) with secondar\' containment 50 fL 

(ii) without secondary containment 100 fL 

(P) All other sources of groundwater contamination 100 fL 

(3) For a well serving a sin.glc-familv dwelling where lot size or other fixed conditions preclude the 
separation distances specified in Subparagraph (a)(2) of this Rule, the required separation dis- 
tances may be reduced to the maximum possible but in no case less than the following: 

(A) Septic tank and drainficld 50 ft. 

(B) Water-tight sewage or liquid-waste collection or transfer facihty 25 ft. 

(C) Building foundations 15 fL 

(D) Cesspool or pnvies 50 fL 

(4) A well or wcU s\ stem. ser\'ing more than one single-family dwelling but with a designed capacity 
of less than 100.000 gpd. must meet the separation requirements specified in Subparagraph (a) 
(2) of this Rule; 



195 7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(5) A well or well system with a designed capacity of 100,000 gpd or ^eater must be located a 
sufficient distance from known or anticipated sources of groundwater contamination so as to 
pre\ent a violation of applicable groundwater quality standards, resulting from the movement 
of contaminants, in response to the operation of the well or well system at the proposed rate 
and schedule of pumping; 

(6) (5) Actual separation distances must conform with the more stringent of applicable federal, state 
and local requirements; 

(7) f^ Wells drilled for public water supply systems regulated by the Deportmant ef Human Re- 
sourooG Division of Environmental Health shall meet the siting and all other requirements of that 
dopartmont. Division. 

(b) Source of water. 

(1) The source of water for any well intended for domestic use shaU not be from a water bearing 
zone or aquifer that is known to be contaminated; 

(2) In designated areas described in Rule .0117 of this Section, the source shall be greater than 35 
feet; 

(3) In designated areas described in Rule .0116 of this Section, the source may be less than 20 feet, 
but in no case less than 10 feet; and 

(4) In all other areas the source shall be at least 20 feet below land surface. 

(c) (fe) Drilling Fluids and Additives. Drilling Fluids and Additives shall be matorialo sp e cifiod fop »se 
m not contain organic or toxic substances and may be comprised only of: 

( 1) the formational material encountered during drilling; or 

(2) materials manufactured specifically for the purpose of borehole conditioning or water well 
construction. aft4 appro vod hf tbe Divioion. 

(d} (©) Casing. 
(1) If steel casing is used, then: 

(A) The casing shall be new, seamless or electric-resistance welded galvanized or black steel pipe. 
Galvanizing shall be done in accordance with requirements of ASTM A- 120. 

(B) The casing, threads and couplings shall meet or exceed the specifications of ASTM A- 53, 
A-120or A589. 

(C) The minimum wall thickness for a given diameter shall equal or exceed that specified in Table 
1. 

TABLE 1: MINIMUM WALL THICKNESS FOR STEEL CASING: 

Nominal Diameter Wall Thickness 

(in.) (in.) 



For 3-1/2" or 


smaller 


pipe. 


schedule 40 


is required 


4 








0.142 


5 








0.156 


5-1/2 








0.164 


6 








0.185 


•8 








0.250 


10 








0.279 


12 








0.330 


14 and larger 








0.375 



(D) Stainless steel casing, threads, and couplings shall conform in specifications to the general 
requirements in ANSI/ ASTM A- 530 and also shall conform to the specific requirements in the 



7:3 NORTH CAROLINA REGISTER May I, 1992 196 



PROPOSED RULES 



ASTM standard that best describes the chemical makeup of the stainless steel casing that is in- 
tended for use in the construction of the well; 

(E) Stainless steel casing shall have a minimum wall thickness that is equivalent to standard 
schedule number lOS; 

(F) Steel casing shall be equipped with a drive shoe if the casing is seated in a consoHdated rock 
formation and for any other wells if the casing is driven. The drive shoe shall be made of forged, 
high carbon, tempered seamless steel and shall have a beveled, hardened cutting edge. A drive 
shoe will not be requjed for wells in which the grout surrounds and extends the entire length 
of the casing. 

2) If Thermoplastic Casing is used, then: 

(A) the casing shall be new; 

(B) the casing and joints shall meet or exceed all the specifications of ASTM F-480-8 1 , except that 
the outside diameters will not be restricted to those listed in F-480; 

(C) the maximum depth of installation for a given SDR or Schedule number shall not exceed that 
listed in Table 2; 



Editor's Note: This Table has been moved from Part (e)(1)(C) in this Rule. The amendments to the 
fable are shown below. The table is shown as deleted from Part (e)(1)(C). 

TABLE 2: Maximum allowable depths (in feet) of Installation of 
Thermoplastic Water Well Casing 









Nominal Diameter (in inches) 










- 


Schedule 
number- 


2 


2.5 


3 


3.5 4 5 6 


8 


10 


12 


14 


16 


Schedule 
40- 


485 


635 


415 


315 253 180 130 


85 


65 


65 


50 


50 


Schedule 
80- 


1460 


1685 


1170 


920 755 550 495 


340 


290 


270 


265 


255 




SDR Number 






All Diameters (in inches) 












SDR 41 








20 












SDR 32.5 








50 












SDR 27.5 








m 100 












SDR 26 








95 












SDR 21 








185 












SDR 17 








355 












SDR 13.5 








735 













(D) The top of the casing shall be terminated by the drilling contractor at least twelve inches 
above land surface; 

(F) For wells in which the casing will extend into consolidated rock, thermoplastic casing shall 
be equipped with a section of steel casmg at least three feet in length, or other de\ice approved 
by the Director, sufficient to protect the ph\sical integrity of the thermoplastic casing dunng the 
processes of seating and grouting the casing and subsequent dniling operations. 
(3) t» ccin '. tnicting asy \\<A\. AH water-bearing zones tb*t- aft^ known fe contain containing polluted, 
salme, or other non-potable water, that are encountered or penetrated during dnlLmg, shall be 



197 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



adequately cased and cemented off so that pollution of the overlying and underlying 
groundwater zones will not occur. 

(4) Every weD shall be cased witb so that the bottom of the casing e xt e nding extends to a minimum 
depth as follows: 

(A) Wells located within the area described in Rule .0117 of this Subchapter Section shall be cased 
from land surface to a depth of at least 35 feet; 

(B) Wells located within the area described in Rule .01 16 of this Subchaptor Section shall be cased 
from land surface to a depth of at least 10 feet; 

(C) Wells located in any other area shall be cased from land surface to a depth of at least 20 feet. 

(5) The top of the casing shall be terminated by the drilling contractor at least 12 inches above land 
surface. 

(6) The casing in wells constructed to obtain water from a consolidated rock formation shall be: 

(A) adequate to prevent any formational material from entering the well in excess of the levels 
specified in Paragraph (i) of this Rule; and 

(B) Firmly seated at least one foot into the rock, and 

(i) sealed with grout at least one foot into the rock; or 

(ii) sealed by some other method, approved by the Director, that wUl provide equal protection 
against the entrance of formation material or contaminants one foot below the top of the 
consolidated rock. 

(7) The casing in wells constructed to obtain water from an unconsolidated rock formation (such 
as gravel, sand or shells) shall extend at least one foot into the to£ of the water-bearing forma- 
tion. 

(8) Upon completion of the well, the well casing shall be sufficiently free of obstacles as necessary 
to allow for the instaUation and proper operation of -pumps and associated equipment. 

(e) (4) Grouting. 
(1) Casing shall be grouted to a minimum depth of twenty feet below land surface except that: 

(A) In those areas designated by the Director to meet the criteria of Rule .0116 of this Subchaptor 
Section, grout shall extend to a depth of two feet above the screen or, for open end wells, to the 
bottom of the casing, but in no case less than 10 feet. 

(B) In those areas designated in Rule .0117 of this Subchapter, Section, grout shall extend to a 
minimum of 35 feet below land surface. 

(C) The casing shall be grouted as necessary to seal off all aquifers or zones with water of a poorer 
quality than that of the producing zone(s). 

TABLE ir Maximum allowablo d e pths fift feet^ ef Iniitallation ef 
Thgrmoplar . tio Wat e r WeU Casing 

Nominal Diamotor 



Schodulo 
numbor 


2 


2^4 


i 


2^ A $ 


4 


« 


40 


4a 


44 


44 


Schodulo 

40- 


A^ 


4^ 


4+4 


^44 2» 4*0 


4^0 


^ 


45 


^ 


m 


^ 


Sohodulo 


um 


+4»^ 


UV^ 


i^OO ;i^ 450 


4^ 


340 


im 


¥m 


34§ 


5^ 




SDR Numbor 








AH Diamotors 














U^Vf 








m 














S&R-^S^ 








^ 














S©R:37^ 








m 














^»R:36 








^ 















7:5 NORTH CAROLINA REGISTER May 1,1992 198 





PROPOSED RULES 




S©J4r34- 


W^ 


s©«:-t;i 


i^ 


S»ft44rii 


5^ 



(2) For large diameter weUs, commonly referred to as "bored" wells, cased with concrete pipe or 
ceramic tile, the foUowmg shall apply: 

(A) The diameter of the bore hole shall be at least six inches larger than the outside diameter of 
the casing; 

(B) The annular space around the casing shall be filled with a cement -type grout to a depth of 
at least 20 feet, excepting those designated areas specified in Rules .01 16 and .01 17 of this Sec- 
tion. The grout shall be placed in accordance with the requirements of this Paragraph. 

(3) For any well constructed to obtain water from consolidated rock, the well casing shall be 
grouted, using a cement type grout, to a height of five feet above the intersection of the casing 
and the consolidated rock. 

(4) Bentonite grout may only be used in that portion of the borehole that is below the water table 
throughout the year. 

(5) f3^ Grout shall be placed around the casing by one of the following methods: 

(A) Pressure. ¥be annular spac e bot' i voon tbe casing aft4 Ae formation shall fe# a minimum ef 
4-r§ inchos. Grout shall be pumped or forced under pressure through the bottom of the casing 
until it fills the annular area around the casing and overflows at the surface. 

(B) Pumping. The iinnulor space botweon Ae casing aft4 formatio -Rr shall be a minimum ©f 4r4 
inchos. Grout shall be pumped into place through a hose or pipe extended to the bottom of the 
aimular space which can be raised as the grout is applied. The grout hose or pipe should remain 
submerged in grout during the entire application. 

space * shall b^ complotoly liUod with grout by aftv m e thod tfeat will insure complutod filling »f 
A# space: providi ' d tfee annular »ft»» does He* contain water. Jf A*» annular awa contains water 
it- shall be dowatorod »f Ae grout shall be placed by either tl*e pumping »f pressures method. 
Grout may be emplaced in the annular space, by gra\ity flow through a pipe, to a ma.ximum 
depth of 20 feet below land surface. 

(6) (4^ If an outer casmg is installed, it shall be grouted by either the pumping or pressure method. 

(7) (-4^ All grout mixtures shall be prepared prior to emplacement. 

(5) {4^ The well shall be grouted withm five working days after the casing is set. 

(9) (4) No additives which wiU accelerate the process of hydration shall be used in grout for 

thermoplastic well casing. 
(10) Where grouting is required by the provisions of this Section, the grout shall extend outward 
from the casmg wall to a minimum thickness equal to either one-third of the diameter of the 
outside dimension of the casing or two inches, whichever is greater; excepting. ho\\e\er, that 
large diameter bored wells shall meet the requirements of Subparagraph (e)(2) of this Rule. 
(f} ^ Well Screens. 

(1) The well, if constructed to obtain water from an unconsolidated rock formation, shall be 
equipped with a screen that will adequately prevent the entrance of formation material into the 
well after the weU has been developed and completed by the weU contractor. 

(2) The weU screen be of a design to permit the optimum development of the aquifer with minimum 
head loss consistent with the intended use of the well. The openings shall be designed to prevent 
clogging and shall be free of rough edges, irregularities or other defects that may accelerate or 
contribute to corrosion or clogging. 

(3) Multi-screen wells shall not connect aquifers or zones which have differences 
(A4 in water quality which would result in contamination of any aquifer or zone. 

f^ m water lesels tfert vvould result m depletion »f water from a»¥ aquif e r &f zone &f significant 
change m head m- afty aquifer e+ i',on e . 
(g) (f^ Gravel- and Sand- Packed Wells. 
(1) In constructmg a gravel- or sand- packed well: 



199 7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(A) The grav e l packing material shall be composed of quartz, granite, or similar rock material and 
shall be clean, round e d, of uniform size, water- washed and free from clay, silt, or other delete- 
rious material. 

(B) The si^e of the gra' . -el packing material shall be determined from a grain size analysis of the 
formation material and tihould be compatible with tb» grain &«» &f the aquifor. shall be of a size 
sufficient to prohibit the entrance of formation material into the well in concentrations above 
those permitted by Paragraph (h) of this Rule. 

(C) The gra^' e l packing material shall be placed in the annular space around the screens and casing 
by a fluid circulation method, preferably through a conductor pipe &f to insure accurate place- 
ment and avoid bridging. 

(D) The gra^'ol packing material shall be adequately disinfected. 

(E) For gravel ^or sand- packed wells in which an outer casing, that is grouted its entire length, 
does not extend to the top of the producing zone, a neat cement plug of at least 10 feet in vertical 
thickness shall be placed in the annular area between the inner casing and formation opposite 
the fu"st clay above the top screen. The remaining space shall be fdled with grout or clay except 
the upper 20 feet, which shall be filled with grout. 

(F) Centering guides must be installed within five feet of the top packing material to ensure even 
distribution of the packi.ng material in the borehole. 

(2) The grawl puck packing material shall not connect aquifers or zones which have differences 
(A^ in water quality that would result in deterioration of the water quaUty in any aquifer or zone. 
fS) tft water lovoki that- would result » doplotion ef wator from afty aquifor Bf aono &f cignificant 

change m head m any aquifor »f go no. 
(g) Largo Diamet e r WeUs 
{Ar^ A larg e diam e t e r weli cas e d with concret e pip e afi4 commonly roforrod te as a "borod" wdBy 
fPt&f be conotructod. 

(3) tf the casing joints stf% net s e al e d, the conotruotion shaU be as follows: 

(A-^ The bore hele shall have a minimum diamotor ©f si* inches larger than the outsid e diamotor 
»f the casing. 

\ i-r I 1 1 IV HI li 1 LIILU L'LHJ.^_TJ LU \J \i I lU 1 1 I\J ^TTT^n^^T ^TTTHT t^J r^^^P^T ^T^T^T n^^tV X^-T I T%~! III! CTCTT^^T Ul^ 1 i ^T^TT" tTT CTTTT^TT^nW 

grout te- a depth &f at least 30 feet bolow laftA surface. The grout shall be placed ia aocordanco 
with roquiromonto »f Rul e .0107 (d)(3) »f this Subchapter. 
(G^ The annular spaco around the casing below the grout f . hall be fill e d with sand Bf gravel. 
f©) The gra' i' ol pack material shall be ccnnposod ©f quart?., granite, »f similar rock material aft4 
shall be cl e an, rounded, uniform, wat e r ' ■ sash e d aR4 free from clay, stk^ ©f oth e r deleterious 
material. 
(^ The gras e l shall be adequately disinfoctod. 
^ tf the casing joints afe coaled, the boro hole shall hav e a minimum diameter ©f si* inches larger 
than the outsid e diameter »f the casing t©- a dopth ©f at least 30 feet bolo' i S' the land surface. 
The annular spac e around the casing shall be filled with aeat ©* sand cement grout to- a depth 
©f at least Hi feet b e low lafi4 surfaco. 
f4^ The weh- head shall be completed m the same manner as required fef other vrator supply w e lls. 
(h) Well Development. 

(1) /VU water supply wells shall be properly developed by the well driller; 

(2) Development shall include removal of formation materials, mud, drilling fluids and additives A 
total suspended solids concentrations ef less than $ milh grams pep hteF ef formation mat e rials 
is considered acceptablo. such that the water contains no more than: 

(A) five milligrams per hter ( 19 milUgrams per gallon) of settleable solids; or 
(B| ten NTLs of turbidity as suspended solids. 
(i) Well Head Completion. 

(1) Access Port. Ever>' water supply well and such other wells as may be specified by the Com- 
mission shall be equipped with a usable access port or air line. The access port shall be at least 
one half inch inside diameter opening so that the position of the water level can be determined 
at any time. Such port shall be installed and maintained in such manner as to prevent entrance 
of water or foreign material. 

(2) Well Contractor Identification Plate. 

(A) /Vn identiiication plate, showing the drilling contractor and registration number and the in- 
formation specified in Part (i)(2)(F) of this Rule, shall be installed on the well within 34 72 hours 
after completion of the drillmg. 



7:3 NORTH CAROLINA REGISTER May 1, 1992 200 



PROPOSED RULES 



(B) The identification plate shall be constructed of a durable weatherproof rustproof metal, or 
equivalent material approved by the Director. 

(C) The identification plate shall be Gticurely permanently attached to the well casing or enclosure 
floor around the casing where it is readily visible. 

(D) The identification plate shall not be removed from the well casing or enclosure floor by any 
person. 

(E) The identification teg plate shall be stamped with a permanent marking within ^ da^ ef 
oompk ' tion ©f drilling to show the: 

(i) total depth of well; 

(ii) casing depth (ft.) and inside diameter (in.); 

(iii) screened intervals of screened wells; 

(iv) grav e l packing interval of gravel- or sand- packed wells; 

(v) yield, in gallons per minute (gpm), or specific capacity in gallons per minute per foot of 

drawdown (gpm;ft.-dd); and 
(vi) static water level and date measured; 
(vii^ drilling contractor aB4 rogictration number; 
(viii) (vii) date well completed. 

(3) Pump Installer Identification Plate. 

(A) An identification plate, displa\ing the name and registration number of the pump installation 
contractor, shaU be permanently attached to either the aboveground portion of the weU casing, 
or the enclosure floor if present, within 72 hours after completion of the pump instaflation; 

(B) The identification plate shall be constructed of a durable waterproof mstproof metal, or 
equi\alent matenal appro\ed by the Director; 

(C) The identification plate shall not be remo\ed from the well casing or enclosure floor by any 
person; and 

(D) f he identification plate shall be stamped with a permanent marking to show the: 
(i) date the pump was installed; 

(li) the depth of the pump intake; and 
(iii) the horsepower rating of the pump. 

(4) f^ \"alved flow. E\ery artesian weU that flows under natural artesian pressure shall be equipped 
with a valve so that the flow can be completely stopped. WeU owners shall be responsible for 
the operation and maintenance of the valve. 

(5) (4^ Pitless adapt e r adapters or pitless units shall be allowed as a method of well head completion 
under the following conditions: 

(A) The pitless adaptL«r wh* de\ice be ef ctandard doLiign aft4 manufactured specifically for the 
purpose of water well construction; 

(B) th<» Hftit- f . hall moot induotry standard o fo* otrongth a«4 wat e r tightnoas; Design, installation and 
performance standards shall be those specified in P.\S-1 (Pitless Adapter Standard No. \]_ as 
adopted by the Water S\stem Council s Pitless .Adapter Division; 

(C) The ««+{• pitless device will be compatible with the well casing; 

f©^ j^ tiftrt fe>e join e d to t^ well casing bt» cith e r a thread e d coupling g>f woldod joint; 

(D) ffei The top of the ««**• pitless device shall be extend at least 8 inches above land surface; 

(E) (4^ The Hftit- pitless de\ice shall have an access port. 

(5) AU openings for piping, wiring, and vents shall enter into the weU at least eight inches above land 
surface, except where pitless adapter adapters or pitless units are used, and shall be adequately 
sealed to preclude the entrance of contaminants mto the well. 



Statutorv Aulhoriiv G.S. 87-87; 87-h 



.0108 ST.WD.ARDS OF CONSTRL CTION: 

WEI IS OTHER THAN WATER SLPPLY 

(a) No weU shall be located, constructed, op- 
erated, or repaired in any manner that may ad- 
versely impact the quality of groundwater. Any 
test holes »fi4 borings hole or boring shall be 
permanently abandoned by the dnUer in accord- 
ance with Rule .0113 of this Section within two 
days after drilling or two days after testing is 



complete, whichever is least restrictive; except in 
the case that a test weU is being conycrted to a 
production weU, in which case conversion shall 
be completed within 30 days. 

(b) Injection weUs shall conform to the stand- 
ards set forth in Section .0200 of this Subchapter. 

(c) Monitoring weUs and recovery weUs shaU 
be located, designed, constructed, operated and 
abandoned with materials and bN' methods which 



201 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



are compatible with the chemical and physical 
properties of the contaminants involved, specific 
site conditions and sp>ecific subsurface conditions. 
Specific construction standards will be itemized 
in the construction permit, if such a permit is re- 
quired, but the following general requirements 
will apply: 

(1) For wells from which samples of 
groundwater or other Uquids wiU be ob- 
tained for the purpose of examination or 
testing, or for the recovery of polluted 
groundwater: 



(A) (-4^ The borehole shall not penetrate to 
a depth greater than the depth to be 
monitored or the depth from which con- 
taminants are to be recovered. 

(B) f3) The well shall not hydraulically 
connect separate aquifers. 

(C) (^ The construction materials shall be 
compatible with the contaminants to be 
monitored or recovered. 

(D) f4^ The well shall be constructed in such 
a manner that water or contaminants 
from the land surface cannot migrate 
along the borehole aimulus into p^vet 
pack the packing material or wcU screen 
area. 

(E) f§) WTion a fflas'ol pack is Packing ma- 
terial placed around the screen a seai shall 
be instaHed above the gravol. shall extend 
to a depth at least one foot above the top 
of the screen. A one foot thick seal, 
comprised of bentonitic clav or other ma- 
terial approved by the Director, shall be 
emplaced directly above and in contact 
with the packing material. 

(F) (4^ Grout shall be placed in the annular 
space between the casing and the borehole 
wall from land surface to a depth within 
Uve feet- above the top »f Ae weli ocroon 
the top of the clay seal or to the bottom 
of the casing for open end weUs. 

(G) f?) iAU wells shall be secured to reason- 
ably insure against unauthorized access 
and use. 

(H) {^ AH wells shall be afforded reasonable 
protection against damage during con- 
struction and use. 

(I) f^ Any wells which are flowing artesian 
wells shall be valved so that the flow can 
be regulated. 

(J) The well casing shall be terminated no 
less than 12 inches above land surface da- 
tum unless both of the following condi- 



tions are met: 



(i2 site-specific conditions directly related 
to business activities, such as vehicle 



traffic, would endanger the physical in- 
tegrity of the well, and 

(ii) the weU head is completed in such a 
manner so as to preclude surficial con- 
taminants from entering the well. 
(K) (44^ Each well shall have permanently 

affixed an identification plate constructed 

of a durable material and shall contain the 

following information: 

(i) (A) drilling contractor name and regis- 
tration number; 

(ii) f^ date well completed; 

(iii) fG> total depth of well; 

(iv) f©) a warning that the well is not the 
for water supply and that the 
groundwater may contain hazardous 
materials; and 

(v) f^ depth(s) to screen(s). 
(L) Each well shall be developed such that 

the level of turbidity or settleable solids 

does not preclude accurate chemical ana- 

Ivses of any fluid samples collected. 
(2) For any well which will only be used to 

measure groundwater levels, the foUowing 

general requirements will apply: 

(A) The borehole shall not penetrate to a 
depth greater than the depth at which 
fluid elevation measurements will be 
made; 

(B) The well shall nc:)t hydrauhcaUy connect 
separate aquifers; 

(C) The well shaU be constructed in such a 
manner that water or contaminants from 
the land surface cannot migrate along the 
borehole channel into the packing mate- 
rial or well screen areas; 

(D) Grout shall be placed in the annular 
space between the casing and the borehole 
from land surface to the clav seal above 
the packing material or to the bottom of 
the casing for open end wells; 

(E) Unless the wells will not be left unat- 
tended, such as during a well capacity or 
aquifer capacity test, all wells shall be se- 
cured to reasonably insure against unau- 
thorized access and use; 

(F) All wells shall be afforded reasonable 
protection against damage during con- 
struction and use; 

(G) Any wcU which is a flowing artesian 
well shall be \alvcd such that flow can be 
regulated; 

(H) The well casing shall be terminated no 
less than 12 inches above land surface da- 
tum unless both of the following condi- 
tions are met: 

(i) site-specific conditions related to 
business activities, such as vehicle traf- 



7:5 NORTH CAROLINA REGISTER May I, 1992 



202 



PROPOSED RULES 



fic, would endanger the physical integ- 
rity of the well, and 
(ii) the well head is completed in such a 
manner so as to preclude surficial con- 
taminants from entering the well. 
(I) An identification plate constructed of a 
rustproof, durable material shall be per- 
manently aiflxed to the well and shall 
contain the following information: 



(i) dniling contractor name and registra- 
tion number, 
(ii) date well completed, 
(lii) total depth of well, 
(iy) a wiiming that the well is not a water 
supply vsell and that the groundwater 
may contain contaminants. 
(d) Qb ' .;OP i ation We ' ll s. Wells constructed for 
the purpose of monitoring or testmg for the 
presence of liquids associated vyjth tanks regu- 
lated under 15.-\ NCAC 2N (Cnteria and Stand- 
ards .Applicable to I'nderground Storage Tanks) 
shall be constructed in accord:mce with 15A 
NCAC 2N .05U4. 



<4i 



m 



f f haU ^ caood a* spocifiod m .0107(g) e^ 
titts Subchapter unlor .f i othar i s-ifie af>- 
provod by A« dopartmont. 
oh all h<d groutod \» within twe feet- ef tbe 
Vr^ scrcono efr fof open <*ft4 wl'IIs, te tbe 
bottom ef Ae cac i ing unlt'oo othon i viso ap- 
provod by t+» dopartmont. 

(e) \\'ells constructed for the purpose of moni- 
tormg for the presence of yapors associated with 
tanks regulated under \5A NCAC 2N shall: 

( 1) be constructed in such a manner as to 
preyent the entrance of surficial contam- 
inants or water into or alongside the well 
casing: and 

(2) be proNided with a lockable cap in order 
to reasonably insure agamst unauthorized 
access and use. 

(f) Temporary weUs and all other non-water 
suppK' wells shall be constructed in such a man- 
ner as to preclude the yertical migration of con- 
taminants within and along the borehole channel. 

(g) for sand-or gra\el-packed weUs, centenng 
guides must be installed w ithin tjye feet of the top 
of the packing materia] to ensure eyen distrib- 
ution of the packmg material m the borehole. 

Statutory Authority G.S. 87-87; 87-88. 

.0109 PLMPS .AND PUMPING EQUIPMENT 

(a) The pumping capacity of the pump shall 
be consistent \yith the intended use and yield 
characteristics of the well. 

(b) The pump and related equipment for the 
well shall be conyeniently located to permit easy 
access and remoyal for repair and maintenance. 



(c) TTie base plate of a pump placed directly 
oyer the weU shall be designed to form a 
watertight seal with the well casing or pump 
foundation. 

(d) In installations where the pump is not lo- 
cated directly over the well, the annular space 
between the casing and pump intake or discharge 
piping shall be closed with a watertight seal pref- 
erably designed specifically for this purpose. 

(e) The well shall be properly vented at the well 
head to allow for the pressure changes within the 
weU except when a suction lift typ)e pump is used. 

(f) A hose bibb shall be installed at the well 
head by the person installing the pump for ob- 
taining water samples. In the case of offset jet 
pump installations the hose bibb shall be in- 
stalled on the return (pressure) side of the jet 
pump piping. 

(g) A priming tee shall be installed at the well 
head in conjunction with offset jet pump instal- 
lations. 

(h) Joints of any suction line installed under- 
ground between the weU and pump shall be sur- 
rounded by St* inchoo »f cement, or encased in a 
larger pipe that is sealed at each end. 

(i) The drop piping and electrical wiring used 
in connection with the pump shall meet all ap- 
phcable underwriters spiecLlications. acc e ptabl e 
to the dopartmont. 

(j) Contaminated water shall not be used for 
priming the pump. 

Statutory Authority G.S. 87-87; 87-88. 

.01 10 WELL TESTS FOR YIELD 

(a) Every water supply weU shall be tested for 
capacity by a method and for a period of time 
acceptable to the department. 

(b) The permittee may be required as a permit 
condition to test any weU for capacity by a 
method stipulated in the permit. 

(c) Standard methods for testing domestic weU 
capacities include: 

(1) Pump .Method 

(A) select a permanent measuring point, 
such as the top of the casing; 

(B) measure and record the static water 
level below or above the measuring point 
prior to starting the pump; 

(C) measure and record the discharge rate 
at intervals of 10 minutes or less; 

(D) measure and record water levels using 
a steel or electric tape at inter\'als of 10 
minutes or less; 

(E) continue the test for a period of at least 
one hour; 

(F) make measurements within an accuracy 
of plus or minus 0.25 of » foot, an inch. 



203 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(2) Bailer Method 

(A) select a permanent measuring point, 
such as the top of the casing; 

(B) measure and record the static water 
level below or above the measuring point 
prior to starting the bailing procedure; 

(C) bail the water out of the well as rapidly 
as possible for a period of at least one 
hour; determine and record the bailing 
rate in gallons per minute at the end of the 
bailing period; 

(D) measure and record the water level im- 
mediately after stopping bailing process. 

(3) Air Rotary DriU Method 

(A) measure and record the amount of wa- 
ter being injected into the well during 
drilling operations; 

(B) measure and record the discharge rate 
in gallons per minute at intervals of one 
hour or less during drilling operations; 

(C) after completion of the drilling, con- 
tinue to blow the water out of the weU for 
at least 30 minutes and measure and re- 
cord the discharge rate in gallons per 
minute at intervals of 10 minutes or less 
during the period; 

(D) measure and record the water level im- 
mediately after discharge ceases. 

(4) Air Lift Method 

(A) Measurements shall be made through 
a pipe placed in the well; 

(B) The pipe shall have a minimum inside 
diameter of at least five-tenths of an inch 
and shall extend from top of the well head 
to a point inside the well that is below the 
bottom of the air hne; 

(C) Measure and record the static water 
level prior to starting the air compressor; 

(D) Measure and record the discharge rate 
at intervals of 10 minutes or less; 

(E) Measure and record the pumping level 
using a steel or electric tape at intervals 
of 10 minutes or less; 

(F) Continue the test for a period of at least 
one hour. 

(d) Public, Industrial and Irrigation Wells. 
Ever>' public, industrial and irrigation well upon 
completion, shall be tested for capacity by the 
drilling contractor (except when the owner spec- 
ifies another agent) by the following or equiv- 
alent method: 

( 1 ) The water level in the well to be pumped 
and any observation wells shall be meas- 
ured and recorded prior to starting the 
test. 

(2) The well shall be tested by a pump of 
sufficient size and lift capacity to satisfac- 



torily test the yield of the well, consistent 
with the well diameter and purpose. 

(3) The pump shall be equipped with suffi- 
cient throttling devices to reduce the dis- 
charge rate to approximately 25 percent 
of the maximum capacity of the pump. 

(4) The test shall be conducted for a period 
of at least 24 hours without interruption 
and shall be continued for a period of at 
least four hours after the pumping water 
level stabilizes (ceases to decline). When 
the total water requirements for wells 
other than pubhc, community or munici- 
pal supply wells are less than 100,000 gpd, 
the well shall be tested for a period and in 
a manner to satisfactorily show the ca- 
pacity of the well, or that the capacity of 
the well is sufficient to meet the intended 
purpose. 

(5) The pump discharge shall be set at a 
constant rate or rates that can be main- 
tained throughout the testing period. If 
the well is tested at two or more pumping 
rates (a step-drawdown test), the pumping 
water level shall be stabilized for a period 
of at least four hours for each pumping 
rate. 

(6) The pump discharge rate shall be meas- 
ured by an orifice meter, flowmeter, weir, 
or equivalent metering device. The me- 
tering device shall have an accuracy within 
plus or minus five percent. 

(7) The discharge rate of the pump and time 
shall be measured and recorded at inter- 
vals of 10 minutes or less during the first 
two hours of the pumping period for each 
pumping rate. If the pumping rate is rel- 
atively constant after the first two hours 
of pumping, discharge measurements and 
recording may be made at longer time in- 
tervals but not to exceed one hour. 

(8) The water level in each well and time shall 
be measured and recorded at intervals of 
five minutes or less during the first hour 
of pumping and at intervals of 10 minutes 
or less during the second hour of pump- 
ing. After the second hour of pumping, 
the water level in each well shall be 
measured at such intervals that the lower- 
ing of the pumping water level does not 
exceed 0.25 of a feet- »f thro e inches an 
inch between measurements. 

(9) A reference point for water level meas- 
urements (preferably the top of the casing) 
shall be selected and recorded for the 
pumping well and each observation well 
to be measured during the test. All water 



7.i NORTH CAROLINA REGISTER May I, 1992 



204 



PROPOSED RULES 



level measurements shall be made from 
the selected reference points. 

(10) All water level measurements shall be 
made with a steel or electric tape or 
equivalent measuring device. 

(11) All water level measurements shall be 
made within an accuracy of plus or minus 
0.25 of a foot &f thr ee inchoo. (three 
inches). 

(12) /Vfter the completion of the pumping 
period, measurements of the water level 
recovery rate, in the pumped well, shall 
be made for a period of at least two hours 
in the same manner as the drawdown. 

Statutory Authority G.S. 87-87; 87-88. 

.01 1 1 DISINFECTION OF WATER SLPPLY 
WELLS 

/Ml water supply wells shall be disinfected upon 
completion of construction, maintenance, re- 
pairs, pump installation and testing as follows: 

(1) Chlorination. 

(a) f4^ Chlorine shall be placed in the well in 

sufficient quantities to produce a chlorine 
residual of at least 100 parts per million 
(ppm) in the weD. A chlorine solution 
may be prepared by dissolving high test 
calcium hypochlorite (trade names include 
HTH, Chlor-Tabs, etc.) in water. About 
0.12 percent available chlorine is needed 
per 100 gallons of water for 100 ppm 
chlorine residual. As an example, a well 
having a diameter of six inches, has a 
volume of about one and five-tenths gal- 
lons per foot. If the well has 200 feet of 
water, the minimum amount of 
hypochlorite required would be 0.36 lbs. 
(1.5x200 feet = 300 gallons, 0.12 lbs. per 
100 gaUons, 0.12 x 3 = 0.36 lbs.) 

(b) fJ) The chlorine shall be placed in the well 

by one of the following or equivalent 
methods: 

(i) (d) Chlorine tablets may be dropped in 
the top of the weU and allowed to settle 
to the bottom. 

(ii) (^ Chlorine solutions shall be placed in 
the bottom of the well by using a bailer 
or by pouring the solution through the 
drill rod, hose, or pipe placed in the bot- 
tom of the well. The solution shall be 
flushed out of the drill rod, hose, or pipe 
by using water or air. 

(c) (^ Agitate the water in the well to insure 

thorough dispersion of the chlorine. 

(d) f4^ The well casing, pump colunm and any 

other equipment above the water level in 
the well shall be thoroughly rinsed with 



the chlorine solution as a part of the dis- 
infecting process. 

(e) (4^ The chlorine solution shall stand in the 

well for a period of at least 24 hours. 

(f) (4) The well shall be pumped until the sys- 

tem is clear of the chlorine before the 
system is placed in use. 
f^ A sampl e ei tbe ' ■ ' ■ 'ator should be analyzed 
aft4 found safe fof human consumption. 
(2) Other materials and methods of disinfection 
may be used upon prior approval by the 
Director. 

Statutory Authority G.S. 87-87; 87-88. 

.0112 WELL MAINTENANCE: REPAIR: 
GROUNDWATER RESOURCES 

(a) Every well shall be maintained in a condi- 
tion whereby it will conserve and protect the 
ground wat e r groundwater resources, and 
whereby it will not be a source or channel of 
contamination or pollution to the water supply 
or any aquifer. 

(b) /Vll materials used in the maintenance, re- 
placement, or repair of any well shall meet the 
requirements for new installation. 

(c) Broken, punctured or otherwise defective 
or unserviceable casing, screens, fi.xtures, seals, 
or any part of the well head shall be repaired or 
replaced, or the well shall be properly aban- 
doned. 

(d) National Science Foundation (NSF) ap- 
proved PVC pipe rated at 160 PS I may be used 
for liner casing. The annular space around the 
liner casing shall be at least five-eighths inches 
and shall be completely filled with neat-cement 
grout. 

Statutory Authority G.S. 87-87; 87-88. 

.0113 ABANDONMENT OF WELLS 

(a) Any well which has been abandoned, either 
temporarily or permanently, shall be abandoned 
in accordance with one of the following proce- 
dures: 

(1) Procedures for temporary abandonment 
of weUs: 

(A) Upon temporary removal from service 
or prior to being put into ser\'ice, the well 
shall be sealed with a water-tight cap or 
seal compatible with casing and installed 
so that it cannot be removed easily by 
hand. 

(B) The well shall be maintained whereby 
it is not a source or channel or contam- 
ination during temporary abandonment. 

(C) Every temporarily abandoned well shall 
be protected with a casing. 



205 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



(2) Procedures for permanent abandonment 
of wells: 

(A) All casing and screen materials may be 
removed prior to initiation of abandon- 
ment procedures if such removal will not 
cause or contribute to contamination of 
the groundwaters. Any casing not 
grouted in accordance with Rule .0107 
Paragraph (d) of this Section shall be re- 
moved or properly grouted. 

(B) The entire depth of the well shall be 
sounded before it is sealed to ensure free- 
dom from obstructions that may interfere 
with sealing operations. 

(C) The well shall be thoroughly disinfected 
prior to sealing. 

(D) In the case of gravel-packed wells in 
which the casing and screens have not 
been removed, neat-cement shall be in- 
jected into the well completely filling it 
from the bottom of the casing to the top. 

(E) "Bored" wells shall be completely filled 
with cement grout, dry clay or material 
excavated during drilling of the well and 
then compacted in place. 

(F) Wells, other than "bored" wells, con- 
structed in unconsolidated formations 
other than "bor e d" wells shall be com- 
pletely diU e d filled with cement grout by 
introducing it through a pipe extending to 
the bottom of the well which can be raised 
as the well is fdled. 

(G) Wells constructed in consolidated rock 
formations or that penetrate zones of 
consohdated rock may be filled with ce- 
ment, sand, gravel or drill cuttings oppo- 
site the zones of consolidated rock. The 
top of the sand, gravel or cutting fill shall 
be at least five feet below the top of the 
consohdated rock. The remainder of the 
well shall be filled with cement grout only. 

(H) Test wells less than 20 feet in depth 
which do not penetrate the water table 
shall be abandoned in such manner as to 
prevent the well from being a channel al- 
lowing the vertical movement of water or 
a source of contamination to the 
groundwater supply. Test wells or bor- 
ings that penetrate the water table shall 
be abandoned by completely filling with 
cement grout. 

(b) Any well which acts as a source or channel 
of contamination shall be repaired or perma- 
nently abandoned within 30 days »f of receipt of 
notice from the department. 

(c) The drilling contractor shall permanently 
abandon any well in which the casing has not 
been installed or from which the casing has been 



removed, prior to removing his equipment from 
the site. 

(d) The owner shall be responsible for perma- 
nent abandonment of a well except: 

(1) As otherwise specified in these P>. e gu 
lationo; Rules; or 

(2) If weU abandonment is required because 
the driller improperly locates, constructs, 
or completes the well. 

Statutory Authority G.S. 87-87; 87-88. 

.0114 DATA AND RECORDS REQLIRED 

(a) WeU Cuttings. 

(1) Samples of formation cuttings shall be 

collected and furnished to the department 

Division from all wells when such samples 

are requested by the department. Divi- 



(2) Samples or representatives cuttings shall 
be obtained for depth intervals of 10 feet 
or less beginning at the land surface. 
Representative cuttings shall also be col- 
lected at depths of each significant change 
in formation. 

(3) Samples of cuttings shall be placed in 
containers furnished by the d e partm e nt 
Division and such containers shall be 
fdled, sealed and properly labeled with 
indehble-type markers, showing the well 
owner, well number if apphcable, and 
depth interval the sample represents. 

(4) Each set of samples shall be placed in a 
suitable container(s) showing the location, 
owner, well number if applicable, driller, 
depth interval, and date. 

(5) Samples shall be retained by the driller 
untU dehvery instructions are received 
from the deportment Division or for a 
period of at least 60 days after the well 
record form (GW-1), indicating said sam- 
ples are available, has been received by the 
department. Division. 

(6) The furnishing of samples to any person 
or agency other than the department Di- 
vision shall not constitute compliance 
with the department's request and shall 
not reheve the driller of his obligation to 
the department. 

(b) Reports. 
( 1 ) Any person completing or abandoning any 
well shall submit to the Division a record 
of the construction or abandonment. »» 
forms pro' i idod by tfe# doportmont. For 
pubhc water supply wells, a copy of each 
completion or abandonment record shall 
also be submitted to the 1 lealth Depart- 
ment responsible for the county in which 



7:3 NORTH CAROLINA REGISTER May I, 1992 



206 



PROPOSED RULES 



the well is located. The record shall be 
on forms provided by the Division and 
shall include certification that con- 
struction or abandonment was completed 
as required by these R e gulations, Rules. 
the owner's name and address, well lo- 
cation, diameter, depth, yield, and any 
other information the department Divi- 
sion may reasonably require. 

(2) Ilie certified record of completion or 
abandonment shall be submitted te- tb* 
dopartmont within a period of thirty days 
after completion or abandonment. 

(3) The fumishins of records to any person 
or agency other than the Division shall 
not constitute compliance with the re- 
porting requirement and shall not relieve 
the dnller of his obligation to the Depart- 
ment. 

Statuton Authority G.S. 87-87; 87-88. 

.01 16 DESIGNATED .ARE.AS: WELLS CASED 
TO LESS THAN 20 FEET 

(a) In some areas the best or only source of 
potable w'ater supply exists between ten and 
twenty feet below the surface of the land. In 
consideration of this, the Director may designate 
areas of the state where wells may be ease cased 
to a depth less than twenty feet. To make this 
determination, the Director will fmd: 

( 1 ) that the only or best source of drinking 
water exists between a depth of ten and 
twenty feet below the surface of the land; 

(2) that utilization of said source of water is 
in the best interest of the public. 

(b) The following areas are so designated: 

(1) in Currituck County on Terres Quarter 
Island and in an area between the sound 
and a line beginning at the end of SR 1130 
near Currituck Sound, thence north to the 
end of SR 1133, thence north to the end 
of NC 3 at the intersection with the 
sound; 

(2) on the Outer Banks from the northern 
corporate lijnit of Nags Head on Bodie 
Island, south to Ocracoke Inlet; 

(3) all areas lying between the Intercoastal 
Waterway and the ocean from New River 
Inlet south to New Topsail Inlet; 

(4) all areas lying between the Intercoastal 
Waterway and the ocean from the Cape 
Fear River south to the South Carolina 
line. 

(c) In all other areas, the source of water shall 
be at least 20 feet below land surface, except 
when adequate quantities of potable water can- 
not be obtained below a depth of twenty feet, 



and at sites not within areas designated in Sub- 
paragraph (b) of this Rule the source of water 
may be obtained from unconsolidated rock for- 
mations at depths less than twenty feet provided 
that: 

(1) the well driller can show to the satisfaction 
of the d e partm e nt. Division, that sufficient 
water of acceptable quality is not available 
to a minimum depth of fifty feet; and 

(2) the proposed source of water is the maxi- 
mum feasible depth above fdly feet, but 
in no case less than ten feet. 

(3) the regional e* central office of the de- 
partment shall be notified prior to the 
construction of a well obtaining water 
from a depth between 10 and 20 feet be- 
low land surface. 

Statutory Authority G.S. 87-87. 

.0118 VARIANCE 

(a) The Director may grant a variance from any 
construction standard under the rules of this 
Section. .\ny variance wlU be in writing, and 
may be granted upon oral or written application 
to the Director, by the person responsible for the 
construction of the well for which the variance is 
sought, if the Director fmds facts to support the 
foUowmg conclusions: 

( 1 ) that the use of the well will not endanger 
human health and welfare or the 
groundwater; 

(2) that construction in accordance with the 
standards was not technically feasible in 
such a manner as to afford a reasonable 
water supply at a reasonable cost. 

(b) The Director may require the variance ap- 
plicant to submit such information as he deems 
necessary to make a decision to grant or deny the 
\ariance. The Director may impose such condi- 
tions on a variance or the use of a well for w^hich 
a variance is granted as he deems necessary to 
protect human health and welfare and the 
groundwater resources. The tindings of fact 
supporting any variance under this Rule shall be 
in writing and made part of the variance. 

(c) A N'ariance applicant who is dissatisfied with 
the decision of the Director may commence a 
contested case by filing a petition under G.S. 
150B-23 within 60 days after receipt of the deci- 
sion. 

Statutory .Authority G.S. 87-87; 87-88; 150B-23. 

.0119 DELEGATION 

(a) The Director is delegated the authority to 
grant permission for well construction under G.S. 

87-87. 



207 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



(b) The Director is delegated the authority to 
give notices and sign orders for violations under 
G.S. 87-91. 

(c) The Director is delegated the authority to 
request the Attorney General to institute civil 
actions under G.S. 87-95. 

(d) The Director is authorized to subdelegate, 
to an official of the Division, the granting of a 
variance from any construction standard, or the 
approval of alternate construction methods or 
materials, specified under the Rules of this Sec- 
tion. 

Statutory Authority G.S. l43-2l5.3(a)( I ). 

SL BCH.\PTKR 21. - GROl NDW.ATER 
CLASSIFICATION AM) STANDARDS 

SECTION .0100 - GENERAL CONSIDER.UIONS 

.0107 COMPLIANCE BOLNDARY 

(a) For disposal systems permitted prior to 
December 30, 1983, the comphance boundary is 
estabUshed at a horizontal dist^mce of 500 feet 
from the waste boundary or at the property 
boundary, whichever is closer to the source. 

(b) For disposal systems permitted on or after 
December 30, 1983, a comphance boundary shall 
be estabhshed 250 feet from the waste boundary, 
or 50 feet within the property boundary, which- 
ever point is closer to the source. 

(c) The boundary shall be established by the 
Director at the time of permit issuance. Any sale 
or transfer of property which affects a comphance 
boundary shaU be reported immediately to the 
Director. aft4 th« complianc e bounduP t ' fe- 
ootabhshod accordingly. For disposal systems 
which are not go\'emcd by Paragraphs (e) or (f) 
of this Rule, the compliance boundar\' affected 
by the sale or transfer of property will be re- 
established consistent with Paragraphs (a) or (b) 
of this Rule, whichever is applicable. 

(d) lor disposal s\stems permitted or reper- 
mitted after January \j_ 1993, no water supply 
wells shall be constructed or operated within the 
comphance boundary. 

(e) For disposal systems permitted or reper- 
mitted after January' 1, 1993, a permittee shall not 
transfer land within an established compliance 
boundaPv' unless; 



(\j_ the 



the land transferred is serviced by a com- 
munity water s\stem as defined in 1 5.\ 
NCAC 18C, the source of which is lo- 
cated outside the compliance boundar\ ; 
and 
(2) the deed transferring the property: 

(A) contains notice of the permit , including 
the permit number, a description of the 



type of permit, and the name, address and 
telephone number of the permitting 
agency; and 

(B) contains a restrictive covenant running 
with the land and in favor of the permittee 
and the State, as a third party benehciarw 
which prohibits the constaiction and op- 
eration of water supply wells within the 
comphance boundary; and 

(C) contains a restrictive covenant running 
with the land and in favor of the permittee 
and the State, as a third party beneliciar\-, 



which grants the right to the permittee 
and the State to enter on such property 
within the comphance boundary for 
groundwater monitoring and remediation 
purposes. 
(f} If at the time a permit is issued or reissued 
after January j^ 1993, the permittee is not owner 
of the land within the compliance boundary, it 
shall be a condition of the permit issued or re- 
newed that the landowner of the land within the 
compliance boundary' other than the pennittee 
execute and tile iri the Register of Deeds in the 
county in which the land is located, an easement 
running with the land which: 



( 1 ) contains: 

(A) either a notice of the permit, including 
the permit number, a description of the 
type of permit, and the name, address and 
telephone number of the permitting 
agency; or 

(B) a reference to a notice of the permit 
with book and page number oj^^ its 
recordation if such notice is required to 
be tiled by statute; 

(2) prohibits the construction and operation 
of water supply wells within the comph- 
ance boundary'; and 

(3) reserves the nght to the permittee and the 
State to enter on such property within the 
compliance boundary' for groundwater 
monitonng and remediation pun"'Oses. 

(g) f4+ Ihe boundary' shall form a vertical plane 
extending from the water table to the maximum 
depth of saturation. 

(h) (^ For ground absorption sewage treatment 
and disposal systems which are permitted under 
44 \C.\C mV r¥mh 15A NCAC ISA .1^00. the 
comphance boundary shaU be estabhshed at the 
property boundary. 

(i) ff} Penalties authorized pursuant to G.S. 
143-21 5. 6(a)(l)a. will not be assessed for vio- 
lations of water quality standards vvitliin a com- 
pliance boundary unless the result of violations 
of permit conditions or negligence in the man- 
agement of the facihty. 

(i) (g) The Director shall require: 



7:i NORTH CAROLIN.i REGISTER May I, 1992 



208 



PROPOSED RULES 



(1) that pennits for all activities governed by 
G.S. 143-215.1 be written to protect the 
quality of groundwater established by ap- 
plicable standards, at the compliance 
boundary; 

(2) that recommendations be made to ensure 
compliance with the apphcable level of 
standards at the compUance boundary on 
all permit applications received for review 
from other state agencies; 

(3) that necessary groundwater quality moni- 
toring shall be conducted within the 
compliance boundary; and 

(4) that a contravention of standards within 
the compliance boundary resulting from 
activities conducted by the ptermitted fa- 
cility be remedied through clean-up, re- 
covery, containment, or other response 
when any of the following conditions oc- 
cur: 

(A) a violation of any standard in adjoining 
classified waters occurs or can be reason- 
ably predicted to occur considering 
hydrogeologic conditions, modeling, or 
other available evidence; 

(B) an imminent hazard or threat to the 
public health or safety exists or can be 
predicted; or 

(C) a violation of any standard in 
groundwater occurring in the bedrock 
other than limestones found in the 
Coastal Plain sediments. 

Statutory Authority G.S. 143-215. 1 (b); 
143-215.3 (a) (I); I43B-282. 

■k-k-k-k-k-k-ii-k-k-k-k-k-k-k-k^-k-k 



Jyotice is hereby given in accordance with G.S. 
150B-21 .2 that the Environmental Management 
Commission intends to adopt rules cited as 15A 
NCAC 2D .1301 - .1305. 

1 he proposed effective date of this action is 
September I. 1992. 

1 he public hearing will be conducted at 7:00 
p.m. on .\fay 18, 1992 at the County Courthouse 
Annex, County Commission Boardroom, 124 
West Elm Street, Graham, Sorth Carolina. 

Txeason for Proposed Action: To adopt an 
oxygenated gasoline standard as required by the 
1990 Clean Air Act amendments. 



i^omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Any person desiring to comment for 
more than three minutes is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. The hearing 
officer may limit oral presentation lengths to five 
minutes if many people want to speak. The record 
of proceedings will remain open until May 31 , 
1992, to receive additional written statements. 
To be included, the statement must be received by 
the Department by May 31 , 1992. 

Comments should be sent to and additional infor- 
mation concerning the hearing or the proposals 
may be obtained by contacting: 

Mr. Thomas C. Allen 
Division of Environmental Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

(919) 733-3340 

A iscal Note: This Rule affects the expenditures 
or revenues of local funds. .4 fiscal note was sub- 
mitted to the Fiscal Research Division on March 
5. 1992. OSBM on March 5, 1992, N.C. League 
of Municipalities on March 5, 1992, and N.C. 
Association of County Commissioners on March 
5, 1992. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION 
CONTROL REQUIREMENTS 

SECTION .1300 - OXYGENATED GASOLINE 
STANDARD 



.1301 

This 



PURPOSE 

Section sets 



forth oxvaenated aasoline 



standards m areas where an ox^'genated gasoline 
program is implemented pursuant to State law 
for all gasoline sold wholesale for use or for all 
gasoline sold retail, offered for use, dispensed, or 
otherwise provided for use in any spark-igmtion 
engme other than aircraft in the areas defmed in 
Rule . 13l)2(a) of this Section during the time pe- 
riods defined in Rule .1302(bi of this Section. 



Statutory Authority G.S. 
143-215.107 (a) (3), (7). 



143-215.3 (a) (1); 



.1302 APPLICABILITY 

(a) This Section applies to gasoline identified 
in Rule .1301 of this Section during the time pe- 



209 



7:3 NORTH CAROLLNA REGISTER May I, 1992 



PROPOSED RULES 



riod described m Paragraph (b) of this Rule in 
the two areas identified as follows: 

( 1) the Raleigh Durham Metropolitan Statis- 
tical Area consisting of Durham, Frankhn, 
Orange, and Wake Counties; and 

(2) the Greensboro /Winston-Salem/ni.gh 
Point Metropohtan Statistical Area con- 
sisting of Davie. Davidson, Forsyth, 
Guilford, Randolph, Stokes, and Yadkin 
Counties. 

(b) This Section apphes to gasoline identified 
in Rule .1301 of this Section and in the counties 
identified in Paragraph (a) of this Rule for the 
four-month period beginning November ]_ and 
running through the last day of February of the 
following year. Ihe first such period begins 
November 1, 1992. 



(c) Gasoline in storage within the counties 
identified in Paragraph (a) of this Rule prior to 
November 1 at a dispensing facihty having total 
gasoline tank capacity of less than 550 gaUons or 
a total weekly dispensing rate of less than 550 
gallons is exempted from Rule .1304 of this Sec- 
tion, but any gasoline supphed to the facihty 
during the period identified in Paragraph (b) of 
this Rule shall comply with Rule .1304 of this 
Section. 



Statutory Authority G.S. 
143-215.107 (a) (3), (7). 



143-215.3 (a) (1); 



.1303 DEFINITIONS 

For the purpose of this Section, "oxygenated 
gasoline" means any gasoline which contains a 
substance or substances to raise the oxygen con- 
tent of the gasoline to conform with Rule .1304 
of this Section. 

Statutory Authority G.S. 143-213; 143-215.3 (a) 
(1): 143-215. lOS (c) (7). 

.1304 OXYGEN CONTENT ST.\ND.\RD 

Gasoline to which this Section applies shall 
have an o.xvgen content of not less than 2.7 per- 
cent by weight dunng the period defined in Par- 
agraph (b) of Rule .1302 of this Section. 



Statutory Authority G.S. 
143-215.107 (a) (3), (7). 



143-215.3 (a) (1); 



.1305 MEASUREMENT AND ENFORCEMENT 

(a) Gasoline samples shall be taken and han- 
dled by methods approved by the Cjasoline and 
Oil Inspection Board. 

(b) Gasoline samples shall be analyzed by the 
American Society for Testing and .Materials 
(AS r.M) standard test method, designation D 



4815-89 or b^ other methods approved by the 
Gasoline and Oil Inspection Board. 

(c) Fnforcement shall be in accordance with 
procedures adopted by the Gasoline and Oil In- 
spection Board. 

(d) The AS TM test method cited in this Rule 
is hereby incorporated by reference including any 
subsequent amendments and editions. A copy 
of the ASTM test method can be obtained from 
the Air Quality Section, Division of Environ- 
mental Management, P.O. Box 29525, Raleigh, 
North Carolina 27626, at no cost. 



Statutory Authority G.S. 119-26; 143-215.3 (a) 
(1); 143-215.107 (a) (7); 150B-21.6. 



■k'k-^-k-k-k-k-k-k-k-k-k'k'k-k-k'k'k 



Jy otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Emiron- 
ment, Health, and Natural Resources intends to 
adopt rule(s) cited as I5A NCAC 2G .0601 - 
.0602 with changes from the proposed text noticed 
in the Register, Volume 6, Issue IS, pages 
1316-1317. 

1 he proposed effective date of this action is Au- 
gust 3, 1992. 

JtXeason for Proposed Actions: Changes made 
following the 1110:92 hearing altered the format 
of the proposed rules, but not their essence. Plants 
proposed for listing on the Noxious Aquatic Weed 
List remain essentially the same. Notification of 
these proposed rules will be broadly disseminated. 



Co 



' omment Procedures: Interested persons may 
present written statements between May 1 , 1992 
and May 31, 1992. All such statements must be 
delivered or mailed to Dr. David J. DeMont, 
EHNR- Water Resources, P.O. Box 27687, 
Raleigh, NC 27611. 

CHAPTER 2 - ENVIRONMENTAL 
IVI.4NAGEMENT 

SLBCH AFTER 2G - WATER RESOURCES 
PROGRAMS 

SECTION .0600 - AQL.VTIC WEED CONTROL 

.0601 THE AQUATIC WEED CONTROL ACT 

The North Carolina Aquatic Weed Control Act 
of 1991 empowers the State of North Carolina 
to control, eradicate, and regulate plants desig- 
nated as noxious aquatic weeds. Unless specific 
exemptions are granted, the Aquatic Weed Con- 



7:5 NORTH CAROLINA REGISTER May 1, 1992 



210 



PROPOSED RULES 



trol Act and the existing powers of the Commis- 
sioner of Agricuhure prohibit importation, sale, 
use, cuhure, collection, transportation, and dis- 
tribution of these plants m North Carolina. 
Permits for the movement of noxious aquatic 
weeds may be obtained from the Commissioner 
of Agriculture pursuant to 2 NCAC 48A .1705 
and . 171)6, subject to the conditions stated 
therein. 



Statutory Authority G.S. 
II3A-224. 



113A-222; II3A-223; 



.0602 NOXIOUS AQL.ATIC WEED LIST 

The Secretary" of the Department of F.nviron- 
ment. Health, and Natural Resources has deter- 



mined that the following aquatic plants exhibit 

characteristics which threaten or may threaten 

the health or safety of th£ people of North 

Carolma or beneficial uses of the waters of North 

Carolina: 

( 1) Aquatic species listed on the Federal 

Noxious Weed List. The Secretary of the 

Department of Fnyironment, Health, and 

Natural Resources hereby incorporates by 

reference, including subsequent amendments 

and editions of the referenced materials, all 

aquatic species hsted in 7 C.F.R. ^360.200. 



A current list of the aquatic species on the 
Federal Noxious Weed List is ayailable, free 
of charge, from the Aquatic Weed Control 
Program. Department of Enyironment. 
Health, and Natural Resources, Diyision of 
Water Resources, P.O. Box 27687, Raleigh, 
NC 2761 1. Copies of the Code of Federal 
Regulations may be obtained from the Su- 



penntendent of 
Pnnting OtTice. 



Documents, Go\emment 
Washington, DC 



20402, at 



a cost of twelve dollars ($12.00). 
(2) Additional Noxious Aquatic Weeds: 
Crassula helmsii - Swamp stonecrop 
Lq^arosiphon spp. (■\11 species) ^ Mrican 
elodea 

Sdhinia spp. (/VU except S^ rotundifolia - 
Water fern 

Trapa spp. (.-VU species) - Water-chestnut 
Ludwi^ia uru^uayensis (Camb.) Hara - 
L ruguay waterprimrose 
Lv thrum sa/icaria L. - Purple loosestrife 
Phrd'^miles australis (Cav.) Tnn. ex Steud. ^ 
Common reed 

Alternanthera philoxeroides (Mart.) Griseb - 
Alligatorvveed 



l:2,eria densa Planch. 



Brazilian elodea 



Mvriophyl/um spicatum 1_ - Eurasian 

watcrmilfoil 

Sajas minor .AH. - Brittleleaf naiad 



Statutory Authority G.S. I I3A-222. 

1\ otice is hereby given in accordance with G.S. 
I50B-2I.2 that the EHNR - Coastal Management 
intends to amend rule(s) cited as ISA NCAC 7H 
.0208, .0302 - .0303, .0306; 7J .060/ - .0603, 
.0605; and adopt rule(s) cited as I5A NCAC 7 J 
.0604; 7M .1101 - .1102. 

1 he proposed effective date of this action is Oc- 
tober 1, 1992. 

1 he public hearing will be conducted at 4:00 
p.m. on .\tay 28, 1992 at the Beaufort County 
Community College, Learning Resources Center, 
U.S. 264 East, Washington. N.C. 



R 



easons for Proposed Actions: 



ISA NCAC 7H .0208, .0302 - .0303, .0306 - To 

clarify and remove confusion and inconsistencies 
among CRC Rules. 

ISA NCAC 7J .0601 - .0605 - Consists of proposed 
guidelines for federal agencies requesting a 
Declaratory Ruling (interpretation) of a CRC 
Rule or policy as they apply to a publicly funded 
project. 

ISA NCAC 7\I .1101 - .1102 - Will be a policy to 
encourage the beneficial disposal of dredge mate- 
rial so that the sand is not removed from the active 
coastal system. 

K-' omment Procedures: A II persons interested in 
this matter are invited to attend the public hearing. 
The Coastal Resources Commission will receive 
mailed written comments postmarked no later 
than June 1 , 1992. Any person desiring to present 
lengthy comments is requested to submit a written 
statement for inclusion in the record of pro- 
ceedings at the public hearing. A dditional infor- 
mation concerning the hearing or the proposals 
may be obtained by contacting Dedra Blachxell, 
Division of Coastal Management, P.O. Box 
27687, Raleigh, NC 2761 1-7687, (919) 733-2293. 

Edito/s .\ote: Pursuant to G.S. 150B-2L20(5) 
the agency is requesting that the current rule 
codified as ISA NCAC 7 J .0604 be recodified to 
ISA .\CAC 7 J .0605 entitled: Petitions for 
Rulemaking, with the proposed amendments. The 
agency wishes to adopt a rule codified as ISA 
\C.4C 7 J .0604 entitled: Federal Activities. 



211 



:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



This recodification provides a clear and orderly 
aiTangement of rules concerning declaratory 
rulings. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GLTDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0200 - THE ESTLARINE SYSTEM 

.0208 USE STANDARDS 

(a) General Use Standards 

(1) Uses which are not water dependent will 
not be permitted in coastal wetlands, 
estuarine waters, and public trust waters. 
Restaurants, residences, apartments, mo- 
tels, hotels, trailer parks, private roads, 
factories, and parking lots are examples 
of uses that are not water dependent. 
Uses that are water dependent may in- 
clude: utility easements; docks; wharfs; 
boat ramps; dredging; bridges and bridge 
approaches; revetments, bulkheads; 
culverts; groins; navigational aids; 
mooring pilings; navigational channels; 
simple access channels and drainage 
ditches. 

(2) Before being granted a permit by the CRC 
or local p>ermitting authority, there shall 
be a finding that the applicant has com- 
plied with the foOowing standards: 

(A) The location, design, and need for de- 
velopment, as weO as the construction 
activities involved must be consistent with 
the stated management objective. 

(B) Before receiving approval for location 
of a use or development within these 
AECs, the permit-letting authority shall 
fmd that no suitable alternative site or lo- 
cation outside of the AEC exists for the 
use or development and, further, that the 
applicant has selected a combination of 
sites and design that will have a minimum 
adverse impact ujx)n the productivity and 
biologic integrity of coastal marshland, 
sheUfish beds, submerged grass beds, 
spawning and nursery areas, important 
nesting and wintering sites for waterfowl 
and wildlife, and important natural ero- 
sion harriers (cypress fringes, marshes, 
clay soils). 

(C) Development shall not violate water 
and air quality standards. 

(D) Development shall not cause major or 
irreversible damage to valuable docu- 
mented archaeological or historic re- 
sources. 



(E) Development shall not measurably in- 
crease siltation. 

(F) Development shall not create stagnant 
water bodies. 

(G) Development shall be timed to have 
minimum adverse significant affect on life 
cycles of estuarine resources. 

(H) Development shall not impede naviga- 
tion or create undue interference with ac- 
cess to, or use of, public trust or estuarine 
waters. 

fi) Dovolopmont propooad ift eotuarino wa- 
Pif% must aise be conoiotont with applica 
ble standards fof tfee oc e an hazard system 
i\ECs set- foptfe ift S e ction M^ ei tim 
Subohaptor. 

(3) WTien the proposed development is in 
conflict with the general or specific use 
standards set forth in this Rule, the CRC 
may approve the development if the ap- 
plicant can demonstrate that the activity 
associated with the proposed project will 
have pubhc benefits as identified in the 
fmdings and goals of the Coastal .Area 
Management Act, that the public benefits 
clearly outweigh the long range adverse 
effects of the project, that there is no rea- 
sonable and prudent alternate site avail- 
able for the project, and that all 
reasonable means and measures to miti- 
gate adverse impacts of the project have 
been incorporated into the project design 
and wUl be implemented at the applicant's 
expense. These measures taken to miti- 
gate or minimize adverse impacts may in- 
clude actions that wiU: 

(A) minimize or avoid adverse impacts by 
limiting the magnitude or degree of the 
action; 

(B) restore the affected environment; or 

(C) compensate for the adverse impacts by 
replacing or providing substitute re- 
sources. 

(4) Primary nursery areas are those areas in 
the estuarine system where initial post 
larval development of finlish and 
crustaceans takes place. They are usually 
located in the uppermost sections of a 
system where populations are uniformly 
early juvenile stages. They are officially 
designated and described by the N.C. 
Marine Fisheries Commission in 15A 
NCAC 3B .1405 and by the N.C. Wildlife 
Resources Commission in 15A NCAC 
IOC .0110. 

(5) Outstanding Resource Waters are those 
estuarine and pubUc trust waters classified 
by the N.C. En\ironmental Management 



7:3 NORTH CAROLINA REGISTER May I, 1992 



212 



PROPOSED RULES 



Commission pursuant to Title 15A, Sub- 
chapter 2B .0216 of the N.C. Administra- 
tive Code as Outstanding Resource 
Waters (ORW) upon finding that such 
waters are of exceptional state or national 
recreational or ecological significance. In 
those estuarine and public trust waters 
classified as ORW by the Environmental 
Management Commission (EMC), no 
permit required by the Coastal Area 
Management Act will be approved for any 
project which would be inconsistent with 
applicable use standards adopted by the 
CRC, EMC, or Marine Fisheries Com- 
mission (MFC) for estuarine waters, pub- 
lic trust waters, or coastal wetlands. For 
development activities not covered by 
specific use standards, no permit will be 
issued if the activity would, based on site 
specific information, materially degrade 
the water quality or outstanding resource 
values unless such degradation is tempo- 
rary, 
(b) Specific Use Standards 
(1) Navigation channels, canals, and boat 
basins must be aligned or located so as to 
avoid primary nursery areas highly pro- 
ductive shellfish beds, beds of submerged 
vegetation, or significant areas of regularly 
or irregularly flooded coastal wetlands. 

(A) Navigation channels and canals can be 
allowed through narrow fringes of regu- 
larly and irregularly flooded coastal 
wetlands if the loss of wetlands wiU have 
no significant adverse impacts on fishery 
resources, water quality or adjacent 
wetlands, and, if there is no reasonable 
alternative that would avoid the wetland 
losses. 

(B) All spoil material from new con- 
struction shall be confmed landward of 
regularly and irregularly flooded coastal 
wetlands and stabilized to prevent entry 
of sediments into the adjacent water 
bodies or marsh. 

(C) Spoil from maintenance of channels 
and canals through irregularly flooded 
wetlands shall be placed on non-wetland 
areas, remnant spoil pUes, or disposed of 
by an acceptable method ha\ing no sig- 
nificant, long term wetland impacts. Un- 
der no circumstances shall spoil be placed 
on regularly flooded wetlands. 

(D) Widths of the canals and charmels shall 
be the minimum required to meet the ap- 
plicant's needs and provide adequate wa- 
ter circulation. 



(E) Boat basin design shall maximize water 
exchange by having the widest possible 
opening and the shortest practical en- 
trance canal. Depths of boat basins shall 
decrease from the waterward end inland. 

(F) Any canal or boat basin shall be exca- 
vated no deeper than the depth of the 
connecting charmels. 

(G) Canals for the purpose of multiple res- 
idential development shall have: 

(i) no septic tanks unless they meet the 
standards set by the Division of Envi- 
ronmental Management and the Divi- 
sion of Environmental Health; 
(ii) no untreated or treated point source 

discharge; 
(iii) storm water routing and retention 
areas such as settling basins and grassed 
swales. 
(H) Construction of finger canal systems 
wiU not be allowed. Canals shall be either 
straight or meandering with no right angle 
comers. 
(I) Canals shall be designed so as not to 
create an erosion hazard to adjoining 
property. Design may include 

buLkheading, vegetative stabihzation, or 
adequate setbacks based on sod charac- 
teristics. 
(J) Maintenance excavation in canals, 
channels and boat basins within primary 
nursery areas should be avoided. How- 
ever, when essential to maintain a tradi- 
tional and established use, maintenance 
excavation may be approved if the appli- 
cant meets all of the following criteria as 
shown by clear and convincing evidence 
accompanying the permit application. 
This Rule does not affect restrictions 
placed on permits issued after March 1, 
1991. 

(i) The applicant can demonstrate and 
document that a water-dependent need 
exists for the excavation; and 
(ii) There exists a previously permitted 
channel which was constructed or 
maintained under permits issued by the 
State and or Federal government. If a 
natural channel was in use, or if a 
human-made channel was constructed 
before permitting was necessary, there 
must be clear evidence that the channel 
was continuously used for a specific 
purpose; and 
(ui) Excavated material can be removed 
and placed in an approved disposal area 
without significantly impacting adjacent 
nursery areas; and 



213 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(iv) The original depth and width of a 
human-made or natural channel will 
not be increased to allow a new or ex- 
panded use of the charmel. 
(2) Hydraulic Dredging 

(A) The terminal end of the dredge pipeline 
should be positioned at a distance suffi- 
cient to preclude erosion of the contain- 
ment dike and a maximum distance from 
spillways to allow adequate settlement of 
suspended solids. 

(B) Dredge spoil must be either confmed 
on high ground by adequate retaining 
structures or if the material is suitable, 
deposited on beaches for purposes of 
renourishment, with the exception of (G) 
of this Subsection (b)(2). 

(C) Confmement of excavated materials 
shall be on high ground landward of reg- 
ularly and irregularly flooded marshland 
and with adequate soil stabilization meas- 
ures to prevent entry of sediments into the 
adjacent water bodies or marsh. 

(D) Effluent from diked areas receiving 
disposal from hydrauhc dredging oper- 
ations must be contained by pipe, trough, 
or similar device to a point waterward of 
emergent vegetation or, where local con- 
ditions require, below mean low water. 

(E) When possible, effluent from diked 
disposal areas shall be returned to the area 
being dredged. 

(F) A water control structure must be in- 
stalled at the intake end of the effluent 
pipe. 

(G) Publicly funded projects wiU be con- 
sidered by review agencies on a case by 
case basis with respect to dredging meth- 
ods and spoU disposal. 

(H) Dredge spoil from closed shellfish wa- 
ters and effluent from diked disposal areas 
used when dredging in closed shellfish 
waters shall be returned to the closed 
sheUfish waters. 
(3) Drainage Ditches 

(A) Drainage ditches located through any 
marshland shall not exceed six feet wide 
by four feet deep (from ground surface) 
unless the applicant can show that larger 
ditches are necessary for adequate drain- 
age. 

(B) Spoil derived from the construction or 
maintenance of drainage ditches through 
regularly flooded marsh must be placed 
landward of these marsh areas in a man- 
ner that win insure that entry of sediment 
into the water or marsh will not occur. 
Spoil derived from the construction or 



maintenance of drainage ditches through 
irregularly flooded marshes shall be placed 
on non-wetlands wherever feasible. 
Non-wetland areas include rehc disposal 
sites. 

(C) Excavation of new ditches through high 
ground shall take place landward of a 
temporary earthen plug or other methods 
to minimize siltation to adjacent water 
bodies. 

(D) Drainage ditches shall not have a sig- 
nificant adverse effect on primary nursery 
areas, productive shellfish beds, sub- 
merged grass beds, or other documented 
important estuarine habitat. Particular 
attention should be placed on the effects 
of freshwater inflows, sediment, and nu- 
trient introduction. Settling basins, water 
gates, retention structures are examples of 
design alternatives that may be used to 
minimize sediment introduction. 

(4) Nonagricultural Drainage 

(A) Drainage ditches must be designed so 
that restrictions in the volume or diver- 
sions of flow are minimized to both sur- 
face and ground water. 

(B) Drainage ditches shall provide for the 
passage of migratory organisms by allow- 
ing free passage of water of sufficient 
depth. 

(C) Drainage ditches shall not create stag- 
nant water pools or significant changes in 
the velocity of flow. 

(D) Drainage ditches shall not divert or re- 
strict water flow to important wetlands or 
marine habitats. 

(5) Marinas. Marinas are defmed as any 
publicly or privately owned dock, basin 
or wet boat storage facility constructed to 
accommodate more than 10 boats and 
providing any of the following services: 
permanent or transient docking spaces, 
dry storage, fueling facilities, haulout fa- 
cilities and repair service. Excluded from 
this definition are boat ramp facihties al- 
lowing access only, temporary docking 
and none of the preceding services. Ex- 
pansion of existing facilities shall also 
comply with these standards for all devel- 
opment other than maintenance and re- 
pair necessary to maintain previous 
service levels. 

(A) Marinas shall be sited in non-wetland 
areas or in deep waters (areas not requir- 
ing dredging) and shall not disturb valu- 
able shallow water, submerged aquatic 
vegetation, and wetland habitats, except 
for dredging necessary for access to high- 



7:3 NORTH CAROLINA REGISTER May I, 1992 



214 



PROPOSED RULES 



ground sites. The following four alterna- 
tives for siting marinas are Listed in order 
of preference for the least damaging alter- 
native; marina projects shall be designed 
to have the highest of these four priorities 
that is deemed feasible by the p>ermit let- 
tmg agency: 

(i) an upland basin site requiring no al- 
teration of wetland or estuarine habitat 
and providing adequate flushing by tidal 
or wmd generated water circulation; 
(ii) an upland basin site requiring dredg- 
ing for access when the necessarj' 
dredging and operation of the marina 
will not result in the significant degra- 
dation of existing fisherv', sheUfish, or 
wetland resources and the basin design 
shall provide adequate flushing by tidal 
or wind generated water circulation; 
(ui) an open water site located outside a 
primary nurser\' area which utilizes 
piers or docks rather than channels or 
canals to reach deeper water; and 
(iv) an open water marina requiring ex- 
cavation of no intertidal habitat, and no 
dredging greater than the depth of the 
connectmg channel. 

(B) Marinas which require dredging shall 
not be located in primar,' nursery areas 
nor in areas which require dredging 
through primar>- nurserv' areas for access. 
Maintenance dredging in primary nursery 
areas for existing marinas wiU be consid- 
ered on a case-by-case basis. 

(C) To minimize coverage of pubhc waters 
by docks and moored vessels, dry storage 
marinas shall be used where feasible. 

(D) Marinas to be developed in waters 
subject to pubhc trust rights (other than 
those created by dredging upland basins 
or canals) for the purpose of providing 
docking for residential developments shall 
be allowed no more than 27 sq. ft. of 
pubhc trust waters for every one lin. ft. of 
shoreline adjacent to these public trust 
waters for construction of docks and 
mooring facUrties. The 27 sq. ft. allo- 
cation shall not apply to fairway areas 
between parallel piers or any portion of 
the pier used only for access from land to 
the docking spaces. 

(E) To protect water quality of sheUfishing 
areas, marinas shall not be located within 
areas where shellfish harvesting for human 
consumption is a significant existing use 
or adjacent to such areas if shellfish har- 
vest closure is anticipated to result from 
the location of the marina. In comphance 



with Section 101(a)(2) of the Clean Water 
Act and North Carolina Water Quahty 
Standards adopted pursuant to that sec- 
tion, shellfish harvesting is a significant 
existing use if it can be estabhshed that 
shellfish have been regularly harvested for 
human consumption smce November 28, 
1975 or that shellfish apparently are 
propagating and sun.iving in a biologically 
suitable habitat and are available and 
suitable for harvesting for the purpose of 
human consumption. The Division of 
Marine Fisheries shall be consulted re- 
garding the significance of shellfish harvest 
as an existing use and the magnitude of 
the quantities of sheUfish which have been 
hanested or are available for harvest in 
the area where harvest will be affected by 
the development. 
(F) .Marinas shall not be located without 
written consent from the controUing par- 
ties in areas of submerged lands which 
have been leased from the state or deeded 
by the state. 
(Gj .Marina basins shall be designed to 
promote flushing through the following 
design criteria: 

(ij the basin and channel depths shall 
gradually increase toward open water 
and shall never be deeper than the wa- 
ters to which they connect: and 
(ii) when possible, an opening shall be 
provided at opposite ends of the basin 
to estabhsh flow-through circulation. 
(H) Marinas shall be designed to minirrdze 
adverse effects on navigation and public 
use of waters while allowing the appHcant 
adequate access to deep waters. 
(1) Marinas shall be located and constructed 
so as to avoid ad\'erse impacts on naviga- 
tion throughout all federally maintained 
channels and their immediate boundaries, 
l^his includes mooring sites (permanent 
or temporary), speed or traffic reductions, 
or any other device, either physical or 
regulatory, that may cause a federally 
maintained channel to be restricted. 
(J) Open water marinas shall not be en- 
closed within breakwaters that preclude 
circulation sufficient to maintain water 
quality. 
(K) .Marinas which require dredging shall 
provide acceptable areas to accommodate 
disposal needs for future maintenance 
dredging. Proof of the abihty to truck the 
spoil material from the marina site to an 
acceptable disposal area wiU be accepta- 
ble. 



215 



7:3 AORTH CAROLINA REGISTER Mav I, 1992 



PROPOSED RULES 



(L) Marina design shall comply with all 
applicable requirements for management 
of stormwater runoff. 

(M) Marinas shall post a notice prohibiting 
the discharge of any waste from boat toi- 
lets and explaining the availability of in- 
formation on local pump-out services. 

(N) Boat maintenance areas must be de- 
signed so that all scraping, sandblasting, 
and painting will be done over dry land 
with adequate containment devices to 
prevent entry of waste materials into ad- 
jacent waters. 

(O) All marinas shall comply with all ap- 
plicable standards for docks and piers, 
buUdieading, dredging and spoil disposal. 

(P) All applications for marinas shall be 
reviewed to determine their potential im- 
pact and compliance with applicable 
standards. Such review shall consider the 
cumulative impacts of marina develop- 
ment. 

(Q) Replacement of existing marinas to 
maintain previous service levels shall be 
allowed provided that the preceding rules 
are complied with to the maximum extent 
possible, with due consideration being 
given to replacement costs, service needs, 
etc. 
(6) Docks and Piers 

(A) Docks and piers shall not significantly 
interfere with water flows. 

(B) To preclude the adverse effects of 
shading coastal wetlands vegetation, docks 
and piers built over coastal wetlands shall 
not exceed six feet in width. "T"s and 
platforms associated with residential piers 
must be at the waterward end, and must 
not exceed a total area of 500 sq. ft. with 
no more than six feet of the dimension 
perpendicular to the marsh edge extending 
over coastal wetlands. Water dependent 
projects requiring piers or wharfs of di- 
mensions greater than those stated in this 
Rule shall be considered on a case-by-case 
basis. 

(C) Piers shall be designed to minimize ad- 
verse effects on navigation and public use 
of waters while allowing the applicant ad- 
equate access to deep waters by; 

(i) not extending beyond the estabhshed 
pier length along the same shoreline for 
similar use; 

(ii) not extending into the channel por- 
tion of the water body; and 

(iii) not extending more than one-third 
the width of a natural water body or 



man-made canal or basin. Measure- 
ments to determine widths of the chan- 
nels, canals or basins shall be made 
from the waterward edge of any coastal 
wetland vegetation which borders the 
water body. The one-third length lim- 
itation will not apply in areas where the 
U.S. Army Corps of Engineers, or a 
local government in consultation with 
the Corps of Engineers, has established 
an official pier-head line. 

(D) Pier alignments along federally main- 
tained channels must meet Corps of En- 
gineers District guidelines. 

(E) Piers shall not interfere with the access 
to any riparian property and shall have a 
minimum setback of 15 feet between any 
part of the pier and the adjacent property 
owner's areas of riparian access. The line 
of division of areas of riparian access shall 
be established by drawing a line along the 
channel or deep water in front of the 
properties, then drawing a line perpendic- 
ular to the line of the channel so that it 
intersects with the shore at the point the 
upland property line meets the water's 
edge. Tlie minimum setback provided in 
the rule may be waived by the written 
agreement of the adjacent riparian 
owner(s) or when two adjoining riparian 
owners are co-apphcants. Should the ad- 
jacent property be sold before con- 
struction of the pier commences, the 
applicant shall obtain a written agreement 
with the new owner waiving the minimum 
setback and submit it to the permitting 
agency prior to initiating any development 
of the pier. Apphcation of this rule may 
be aided by reference to an approved dia- 
gram illustrating the rule as applied to 
various shoreline configurations. Copies 
of the diagram may be obtained from the 
Division of Coastal Management. 

(F) Docks and piers shall not significantly 
interfere with shellfish franchises or leases. 
Applicants for authorization to construct 
a dock or pier shall provide notice of the 
permit apphcation or exemption request 
to the owner of any part of a sheUfish 
franchise or lease over which the proposed 
dock or pier would extend. 

(7) Bulkheads and Shore Stabilization Meas- 
ures 
(A) Bulkhead alignment, for the purpose 
of shoreline stabilization, must approxi- 
mate mean high water or normal water 
level. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



216 



PROPOSED RULES 



(B) Bulkheads shall be constructed 
landward of significant marshland or 
marshgrass fringes. 

(C) Bulkhead fill material shall be obtained 
from an approved upland source, or if the 
bulkhead is a part of a permitted project 
involving excavation from a non-upland 
source, the material so obtained may be 
contained behind the bulkhead. 

(D) Bulkheads or other structures em- 
ployed for shoreline stabilization shall be 
permitted below approximate mean high 
water or normal water level only when the 
following standards are met: 

(i) the property to be bulkheaded has an 
identifiable erosion problem, whether it 
results from natural causes or adjacent 
bulkheads, or it has unusual geographic 
or geologic features, e.g. steep grade 
bank, which will cause the applicant 
unreasonable hardship under the other 
provisions of this Rogulation; Rule; 

(ii) the bulkhead alignment extends no 
further below approximate mean high 
water or normal water level than neces- 
sary to allow recovery of the area 
eroded in the year prior to the date of 
application, to align with adjacent 
bulkheads, or to mitigate the unreason- 
able hardship resulting from the unu- 
sual geographic or geologic features; 

(iii) the bulkhead alignment will not re- 
sult in significant adverse impacts to 
public trust rights or to the property of 
adjacent riparian owners; 

(iv) the need for a bulkhead below ap- 
proximate mean high water or normal 
water level is documented in the Field 
Investigation Report or other reports 
prepared by the Division of Coastal 
.Management; and 

(v) the property to be bulkheaded is in a 
nonoceanfront area. 

(E) Where possible, sloping rip-rap, 
gabions, or vegetation may be used rather 
than vertical seawalls. 

(8) Beach Nourishment 

(A) Beach creation and or maintenance 
may be allowed to enhance water related 
recreational facilities for public, commer- 
cial, and private use. 

(B) Beaches can be created and or main- 
tained m areas where they have histor- 
ically been found due to natural processes. 
They will not be allowed in areas of high 
erosion rates where frequent maintenance 
win be necessarv. 



(C) Placing unconfmed sand material in the 
water and along the shoreline will not be 
allowed as a method of shoreline erosion 
control. 

(D) Material placed in the water and along 
the shoreline shall be clean sand free from 
pollutants and highly erodible fmger ma- 
terial. Grain size shall be equal to or 
larger than that found naturally at the site. 

(E) Material from dredging projects can be 
used for beach nourishment if; 

(i) it is first handled in a manner consist- 
ent with regulations rules governing 
spoil disposal; 

(ii) it is allowed to dry for a suitable pe- 
riod; and 

(ui) only that material of acceptable grain 
size is removed from the disposal site 
for placement on the beach. .Material 
shall not be placed directly on the beach 
by dredge or dragline during mainte- 
nance excavation. 

(F) Beach creation shall not be allowed in 
any primary nursery areas, nor in any 
areas where sUtation from the site would 
pose a threat to sheUfish beds. 

(G) Material shall not be placed on any 
coastal wetlands or submerged aquatic 
vegetation. 

(H) Material shall not be placed on any 
submerged bottom with significant 
shellfish resources. 

(I) Beach construction shall not create the 
potential for filling adjacent or nearby 
navigation channels, canals, or boat 
basins. 

(J) Beach construction shall not violate 
water quality standards. 

(K) Permit renewal of these projects shall 
require an evaluation of any adverse im- 
pacts of the original work. 

(L) Permits issued for this development 
shall be limited to authorizing beach 
nourishment only one time during the life 
of the permit. Permits may be renewed 
for maintenance work or repeated need for 
nourishment. 
(9) Wooden and Riprap Groins 

(A) Groins shall not extend more than 25 
ft. waterward of the mean high water or 
normal water level unless a longer struc- 
ture can be justified by site specific con- 
ditions, sound engineering and design 
principals. 

(B) Groins shall be set back a minimum of 
15 ft. from the adjoining property lines. 
This setback may be waived by written 
agreement of the adjacent riparian 



217 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



owner(s) or when two adjoining riparian 
owners are co-applicants. Should the ad- 
jacent property be sold before con- 
struction of the groin commences, the 
applicant shall obtain a written agreement 
with the new owner waiving the minimum 
setback and submit it to the permitting 
agency prior to initiating any development 
of the groin. 

(C) Groins shall pose no threat to naviga- 
tion. 

(D) The height of groins shall not exceed 1 
ft. above mean high water or the normal 
water level. 

(E) No more than two structures shall be 
allowed per 100 ft. of shoreline unless the 
applicant can provide evidence that more 
structures are needed for shoreline stabiU- 
zation. 

(F) "L" and "T" sections shall not be al- 
lowed at the end of groins. 

(G) Riprap material used for groin con- 
struction shall be free from loose dirt or 
any other pollutant in other than non- 
harmful quantities and of a size sufficient 
to prevent its movement from the site by 
wave and current action. 

Statutory Authority G.S. II3A-I07(b); 
113A-I0S; I13A-Il3(b): II3A-I24. 

SECTION .0300 - OCEAN HAZARD AREAS 

.0302 SIGNIFICANCE OF THE OCEAN 
HAZARD CATEGORY 

(a) The primary causes of the hazards peculiar 
to the Atlantic shorehne are the constant forces 
exerted by waves, winds, and currents upon the 
unstable sands that form the shore. During 
storms, these forces are intensified and can cause 
significant changes in the bordering landforms 
and to structures located on them. Hazard 
Ocean hazard area property is in the ownership 
of a large number of private individuals as well 
as several pubUc agencies and is used by a vast 
number of visitors to the coast. Ocean hazard 
areas are critical, therefore, because of both the 
severity of the hazards and the intensity of inter- 
est in the areas. 

(b) The location and form of the various haz- 
ard area landforms, in particular the beaches, 
dunes, and inlets, are in a permanent state of flux, 
responding to meteorologically induced changes 
in the wave cUmate. For this reason, the appro- 
priate location of structures on and near these 
landforms must be reviewed carefully in order to 
avoid their loss or damage. As a whole, the same 
flexible nature of these landforms which presents 



hazards to development situated immediately on 
them offers protection to the land, water, and 
structures located landward of them. The value 
of each landform lies in the particular role it plays 
in affording protection to life and property. (The 
role of each landform is described in detail in 
Technical Appendix 2 in terms of the physical 
processes most important to each.) Overall, 
however, the energy dissipation and sand storage 
capacities of the landforms are most essential for 
the maintenance of the landforms' protective 
function. 

Statutory Authority G.S. I13A-I07 (a); 
1I3A-I07 (b): II3A-113 (b) (6a); II3A-1I3 (b) 
(6b); II3A-II3 (b) (6d); II3A-I24. 

.0303 MANAGEMENT OBJECTIVE OF OCEAN 
HAZARD AREAS 

(a) The CRC recognizes that absolute safety 
from the destructive forces indigenous to the 
Atlantic shoreline is an impossibihty for devel- 
opment located adjacent to the coast. The loss 
of life and property to these forces, however, can 
be greatly reduced by the proper location and 
design of ohorelino structures and by care taken 
in prevention of damage to natural protective 
features particularly primary and frontal dunes. 
Therefore, it is the CRC's objective to provide 
management poUcies and standards for ocean 
hazard areas that serve to eliminate unreasonable 
danger to Ufe and property and achieve a balance 
between the financial, safety, and social factors 
that are involved in hazard area development. 

(b) The purpose of these Rules shall be to 
further the goals set out in G.S. 113A-102(b), 
with particular attention to minimizing losses to 
life and property resulting from storms and 
long-term erosion, preventing encroachment of 
permanent structures on pubhc beach areas, pre- 
serving the natural ecological conditions of the 
barrier dune and beach systems, and reducing the 
pubhc costs of inappropriately oitod cited devel- 
opment. Furthermore, it is the objective of the 
Coastal Resources Commission to protect pres- 
ent common-law and statutory pubhc rights of 
access to and use of the lands and waters of the 
coastal area. 

Statutory Authority G.S. II3A-I07 (b); 
1 13.4-1 13 (b) (6) a.; II3A-II3 (b) (6) b.; 
1I3A-II3 (b) (6) d.; 113A-124. 

.0306 GENERAL USE STANDARDS FOR 
OCEAN HAZARD AREAS 

(a) In order to protect life and property, all 
development not otherwise specifically exempted 
or allowed by law or elsewhere in these Rules 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



218 



PROPOSED RULES 



shall be located according to whichever of the 
foUowing rules is applicable. 

( 1 ) If neither a primary nor frontal dune exists 
in the AEC on or behind the lot on which 
the development is proposed, the devel- 
opment shall be landward of the erosion 
setback line. The erosion setback line 
shall be set at a distance of 30 times the 
long-term annual erosion rate from the 
first line of stable natural vegetation or 
measurement Une, where applicable. In 
areas where the rate is less than 2 feet per 
year, the setback line shall be 60 feet from 
the vegetation line or measurement line, 
where applicable. 

(2) If a primary' dune exists in the AEC on 
or behind the lot on which the develop- 
ment is proposed, the development shall 
be landward of the crest of the primary 
dune or the long-term erosion setback 
line, whichever is farthest from the first 
line of stable natural vegetation or meas- 
urement line, where applicable. For ex- 
isting lots, however, where setting the 
development behind the crest of the pri- 
mary dune would preclude any practical 
use of the lot, development may be lo- 
cated seaward of the primary dune. In 
such cases, the development shall be lo- 
cated behind the long-term erosion set- 
back line and shall not be located on or 
in front of a frontal dune. The words 
"existing lots" in this Rule shall mean a 
lot or tract of land which, as of June 1, 
1979, is specifically described in a recorded 
plat and which cannot be enlarged by 
combining the lot or tract of land with a 
contiguous lot(s) or tract(s) of land under 
the same ownership. 

(3) If no primary dune exists, but a frontal 
dune does exist in the AEC on or behind 
the lot on which the development is pro- 
posed, the development shall be set be- 
hind the frontal dune or behind the 
long-term erosion setback line, whichever 
is farthest from the first line of stable na- 
tural vegetation or measurement line, 
where applicable. 

(4) Because large structures located imme- 
diately along the Atlantic Ocean present 
increased risk of loss of life and property, 
increased potential for eventual loss or 
damage to the public beach area and other 
important natural features along the 
oceanfront, increased p>otentia] for higher 
public costs for federal flood insurance, 
erosion control, storm protection, disaster 
rehcf and provision of public ser\'ices such 



as water and sewer, and increased diffi- 
culty and expense of relocation in the 
event of future shoreline loss, a greater 
oceanfront setback is required for these 
structures than is the case with smaller 
structures. Therefore, in addition to 
meeting the criteria in this Rule for set- 
back behind the primary or frontal dune 
or both the primar>' and frontal dunes, for 
all multi-family residential structures (in- 
cluding motels, hotels, condominiums and 
moteliminiums) of more than 4 units or 
5,000 square feet total floor area, and for 
any non-residential structure with a total 
area of more than 5,000 square feet, the 
erosion setback line shall be twice the 
erosion setback as established in 
.0306(a)(1) of this Rule, provided that in 
no case shall this distance be less than 120 
feet. In areas where the rate is more than 
3.5 feet per year, this setback line shall be 
set at a distance of 30 times the long-term 
annual erosion rate plus 105 feet. 
(5) Estabhshed common-law and statutory 
public rights of access to and use of public 
trust lands and waters in ocean hazard 
areas shall not be eliminated or restricted. 
Development shall not encroach upon 
pubhc accessways nor shall it limit the 
intended use of the accessways. 

(b) In order to avoid weakening the protective 
nature of ocean beaches and primary and frontal 
dunes, no development will be permitted that 
involves the significant removal or relocation of 
primary or frontal dune sand or vegetation 
thereon. Other dunes within the ocean hazard 
area shall not be disturbed unless the develop- 
ment of the property is otherwise impracticable, 
and any disturbance of any other dunes shall be 
allowed only to the extent allowed by Rule 
.0308(b). 

(c) In order to avoid excessive public expendi- 
tures for maintaining public safety, construction 
or placement of growth-inducing public facilities 
to be supported by public funds will be permitted 
in the ocean hazaid area only when such facili- 
ties: 

(1) clearly exhibit overriding factors of na- 
tional or state interest and public benefit, 

(2) will not increase existing hazards or dam- 
age natural buffers, 

(3) will be reasonably safe from flood and 
erosion related damage, 

(4) will not promote growlh and development 
in ocean hazard areas. 

Such facihties include, but are not limited to, 
sewers, waterlines, roads, and bridges, aftd efe- 
sieft control otruoturcs. 



219 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(d) Development shall not cause major or ir- 
reversible damage to valuable documented his- 
toric architectural or archaeological resources 
documented by the Division of yVrchives and 
Histor>', the National Historical Registry, the lo- 
cal land-use plan, or other reliable sources. 

(e) Development shall be consistent with min- 
imum lot size and set back requirements estab- 
lished by local regulations. 

(f) Mobile homes shall not be placed within the 
high hazard flood area unless they are within 
mobile home parks existing as of June 1, 1979. 

(g) Development shall be consistent with gen- 
eral management objective for ocean hazard areas 
set forth in Rule .0303 of this Section. 

(h) Development shall not create undue inter- 
ference with legal access to, or use of, public re- 
sources nor shall such development increase the 
risk of damage to public trust areas. 

(i) Development proposals shall incorporate all 
reasonable means and methods to avoid or min- 
imize adverse impacts of the project. These 
measures shall be implemented at the applicant's 
expense and may include actions that will: 

(1) minimize or avoid adverse impacts by 
limiting the magnitude or degree of the 
action, 

(2) restore the affected environment, or 

(3) compensate for the adverse impacts by 
replacing or providing substitute re- 
sources. 

(j) Prior to the issuance of any permit for de- 
velopment in the ocean hazard AECs, there shall 
be a written acknowledgement from the applicant 
that the applicant is aware of the risks associated 
with development in this hazardous area and the 
limited suitability of this area for permanent 
structures. By granting permits, the Coastal Re- 
sources Commission does not guarantee the 
safety of the development and assumes no liabil- 
ity for future damage to the development. 

(k) All relocation of structures requires permit 
approval. Structures relocated with public funds 
shall comply with the applicable setback line as 
well as other apphcable AEC rules. Structures 
including septic tanks and other essential acces- 
sories relocated entirely with non-public funds 
shall be relocated the maximum feasible distance 
landward of the present location; septic tanks 
may not be located seaward of the primar)' 
structure. In these cases, all other applicable lo- 
cal and state rules shall be met. 

(1) Permits shall include the condition that any 
structure shall be relocated or dismantled when 
it becomes imminently threatened by changes in 
shoreline configuration. The structure(s) shall 
be relocated or dismantled within two years of 
the time when it becomes imminently threatened, 



and in any case upjon its collapse or subsidence. 
However, if natural shoreline recovery or beach 
renourishment takes place within two years of 
the time the structure becomes imminently 
threatened, so that the structure is no longer 
imminently threatened, then it need not be relo- 
cated or dismantled at that time. This condition 
shall not affect the permit holder's right to seek 
authorization of temporary protective measures 
allowed under Rule .0308(a)(2) of this Section. 

Statutory Authority G.S. I13A-I07; II3A-II3 
(b) (6); 1 ISA- 1 24. 

SUBCHAPTER 7J - PROCEDURES FOR 

HANDLING MAJOR DEVELOPMENT 

PERMITS: VARIANCE REQUESTS: APPEALS 

FROM MINOR DEVTLOPMENT PERMIT 
DECISIONS: AND DECLARATORY RULINGS 

SECTION .0600 - DECLARATORY RULINGS 
AND PETITIONS FOR RULEMAKING 

.0601 DECLARATORY RULINGS: GENERALLY 

At the request of any person aggrieved, as de- 
fmed in G.S. 150B-2(6), the Coastal Resources 
Commission may issue a declaratory ruling as 
provided in GrSr 150B 17. G S. 150B-4. 

Statutory Authority G.S. I13A-I24: I50B-4. 

.0602 PROCEDURE FOR REQUESTING 
DECLARATORY RULINGS 

(a) All requests for a declaratory ruling shall 
be filed with the Director, Division of Coastal 
Management, Department of Environment, 
Health, and Natural Resources (DEHNR), P.O. 
Box 27687, Raleigh, North Carolina 27611-7687 
and also the Attorney General's Office, Environ- 
mental Protection Section, P.O. Box 27629, 629, 
Raleigh, North Carolina 27602 7629. 
27602-0629. All requests shall include the fol- 
lowing: the aggrieved person's name and ad- 
dress; the rule, statute or order for which a ruling 
is desired; sin^ a statement as to whether the re- 
quest is for a ruling on the vahdity of a rule or 
on the applicabihty of a rule, order or statute; 
and certified mail receipts showing the request 
was sent to the owners of property adjacent to 
the property that is the subject of the declaratory 
ruling. 

(b) A request for a ruling on the applicability 
of a rule, order, or statute must include a de- 
scription of the factual situation on which the 
ruling is to be based. A request for a ruling on 
the validity of a commission rule must oxprooo 
state the interested person's reasons for ques- 
tioning the validity of the rule. A person may 
ask for both types of rulings in a single request. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



220 



PROPOSED RULES 



A request for a ruling must include or be ac- 
comparaed by: 

( 1 ) a statement of facts proposed for adoption 
bv the Commission: and 

(2) a draft of the proposed ruling. 

Statutory Authority G.S. II3A-124; I50B-4. 

.060.3 PROCEDl RES: CONSIDERING 

REQUESTS FOR DECL.\RATORY 
R I LINGS 

(a) The Commission hereby delegates to the 
Chairman the authority to grant or deny requests 
for declarator%' rulmgs and to determine whether 
notice of the declaratory' ruling request should 
be provided to an\one other than the adjacent 
property owners. The Division of Coastal 
Management shall review each request for a 
declarator).' ruling and shall prepare a recom- 
mendation for the Chairman &f the Coastal Re- 
sourcoo Commiooion as to whether the 
Commission should consent to issue a ruling or 
whether for good cause a ruling would be undo 
sirablo. the request for a declaratory ruling 
should be denied. The Chairman shall dijcide 
' i vhothor a rulmg Vriil- be iL . iiucd. Doclujatopy 
rulmgo shall be baood only »» stipulated, undio 
putod facto. A dotormination Aat- tbe r e qu e sting 
party, aftv other dir i jctly offoctod persons, aft4 Ae 
Division ef Coastal .Managcmont cannot agroo 
»» a set- »f undisputed facts sufficient te support 
a meaningful ruling shall be consider e d good 
cause fef set issuing a ruling, deny a request for 
declaratory' ruling on fmding that: 






the requesting party, anv other directly 
affected persons, and the Di\ision of 
Coastal .Management cannot agree on a 



set of undisputed facts sufficient to sup 
port a meamnglul ruling; 
the matter is the subject of a pending 
contested case hearing; or 



no genuine contro\'ersv exists as to the 
application of a statute or rule to a pro- 
posed project or acti\itv. 
(b) .-Vtter consenting to issue a rulmg, the 
Commission shall decide whether a hearing 
should be bel4 aft4T if s^ how tbe h e aring shall 
be conducted. 1 learings wtli be beW only fo* 
rulings concerning unusually complex matters: 
place the declaraton' ruling on the agenda for its 
next regularly scheduled meeting. 
f-i-f it a hearing h^ te- be held. The Commission 
shall provide notice of the declarator\' rulmg 
proceeding to the requesting party, the adjacent 
property owners and other persons to whom the 
Commission decides to give notice shall be noti 
fre4 &f tbe hearing e^pt^ ef tfee proceduro te- be 



followed no less than 10 days before the date for 
which the hearing declaratory ruling is set. 
(-3) tf ae hearing is te- be hold, The requesting 
party and other persons to whom the Conmiis- 
sion decides to give notice shall be informed aR4 
shall be given adequate tim e allo'wed to submit 
written comments concerning the matter eft 
v i hich tbe ruling is te be made. proposed 
declaratory' ruling. 

(c) If a ruling is to be issued, the Commission 
Chairman shall decide at tbat tifHe whether no- 
tice should be given to persons other than the 
party requesting the ruling and the adjacent 
property owners. In making such a decision, the 
Commission shall consider such factors as: 
whether additional pubhc participation would aid 
the Commission in reaching a decision; whether 
any persons have requested in writing to be al- 
lowod te participate m t4*e ruling: notified of 
proposed declaratory rulings; whether the prop- 
erty or personal rights of other persons might be 
directly affected by the requested ruUng; and 
whether the proposed rulmg would affect the 
application and interpretation of a rule in which 
other persons might be interested. AU persons 
receiving notice of the declaratory' ruling, includ- 
ing all members of the public who respond to a 
published notice of the proposed ruling, may 
submit written comments to the Commission 
concemmg the proposed declaratory' ruling pur- 
suant to Paragraph (b) of this Rule at least five 
days pnor to the date of the proposed ruling; aU 
such comments shall be provided to the Com- 
mission and shall be mcluded in the record of the 
declaratory' ruling. 



(d) I nlcss the Department waives the oppor- 
tunity to be heard, it shall be a party to any re- 
quest for declaratory rulmg. The requesting 
party and the Department shall each be allowed 
30 minutes to present oral arguments to the 
Commission. Neither party may offer testimony 
t"^ T'-rsT^ or conduct cross-examination before the Com- 



mission. 



I'he declaratory ruling shall be deter- 

n'uned on the basis of the statement of 
undisputed facts submitted by the parties. 

(e) (4+ Ihe Comrmssion wiU keep a record of 
each declaratory ruling, which will include at a 
minimum the following items: 

the petition request for a ruling; 
any written comments by interested par- 
ties; 

the statement of undisputed facts on which 
the rulmg was based; 



(1) 
(2) 



(4) ^ any transcnpts of oral proceedings, or, 
at l e ast in the absence of a transcript, a 
summary of all arguments; 



221 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(5) (4^ any other matter considered by the 
agoncy Commission in making the deci- 
sion; and 

(6) (4) the d e cision declaratory ruling together 

with the reasons therefor. 

(f} (»} A declaratory ruling is binding on the 
Commission and the person requesting it unless 
it is altered or set aside by the court. The Com- 
mission may not retroactively change a 
declaratory ruling, but nothing in this Section 
prevents the Commission from prospectively 
changing a ruling. 

(g) (i^ A declaratory ruling is subject to judicial 
review in the same manner as an agency fmal 
decision or order in a contested case. Failuro 
Unless the requesting party consents to the delay, 
failure of the Commission to issue a ruling on the 
merits within 60 days of the request for such 
ruling shall constitute a denial of the request as 
well as a denial of the merits of the request and 
shall be subject to judicial review. 

Statutory Authority G.S. I13A-I24; I50B-4. 

.0604 FEDERAL ACTIVITIES 

(a) At the request of any federal agency or of 
any state or local co-sponsor of a federal project 
with the written concurrence of the federal 
agency, the Commission shall issue a declaratory 
ruling concerning the consistency of a proposed 
federal activity with North Carolina's coastal 
management statutes and regulations unless the 
Chairman determines that no genuine contro- 
versy exists as to the application of a statute or 
rule to a proposed federal activity. 

(b) The request for ruling shall include: 

(1) a statement identifying the rule, statute or 
order at issue; 

(2) certified maj] receipts indicating that notice 
of the request for ruling was sent to the 
owners of property adjacent to the prop- 
erty on which the proposed federal activ- 
ity will take place; 

(3) a statement of facts proposed for adoption 
by the Commission and any documentary 
evidence supporting the proposed state- 



ment of facts; 



(41 
15) 



a draft of the proposed ruling; 
a statement indicating that the Division 
of Coastal Management has preliminarily 
determined that the project may be in- 
consistent with a coastal management 
statute or regulation; and 
a statement identifying the factual issues 
in dispute between the Department and 
the federal agency, 
(c) The Commission shall provide notice of the 
declaratory ruling proceeding to the adjacent 



(61 



property owners and to persons who have re- 
quested notice of proposed rulings. Notice shaU 
be published in a newspaper of general circu- 
lation in the area of the proposed federal activity 
10 days prior to the Commission's consideration 
of the declaratory ruling. Any person may sub- 
mit written comments on the proposed 
declaratory ruling at least five days prior to the 
date the Commission wiU consider the 
declaratory ruling; such comments shall be pro- 
vided to the Commission and shall be included 
in the record of the declaratory ruling. 

(d) The parties to a declaratory ruling shall be 
allowed 30 minutes to present oral arguments to 
the Commission. Unless the Division of Coastal 
Management waives the opportunity to be heard, 
it shall be a party to any request for declaratory 
ruling. No party may offer testimony or conduct 
cross-examination before the Commission. 

Statutory Authority G.S. II3A-124; 150B-4. 

Sm^ .0605 PETITIONS FOR RULEMAKING 

(a) Any person wishing to request the 
adoption, amendment, or repeal of a rule shall 
make this request in a petition addressed to the 
Division of Coastal Management. The petition 
shall specify it is filed pursuant to G.S. 15QB 16 
G.S. 150B-20 and shall contain the following in- 
formation: 

(1) either a draft of the proposed rule or a 
summary of its contents; 

(2) a statement of reasons for adoption of the 
proposed rule(s); 

(3) a statement of the effect on existing rules 
or orders; 

(4) any data in support of the proposed 
rule(s); 

(5) a statement of the effect of the proposed 
rule on existing practices; and 

(6) the name and address of the petitioner. 

(b) The petition will be placed on the agenda 
for the next regularly scheduled commission 
meeting, if received at least four weeks prior to 
the meeting, and the director shall prepare a re- 
commended response to the petition for the 
Commission's consideration. Petitions will be 
considered in accordance with the requirements 
ofGrS. 15QB 16. G.S. 150B-20. 

Statutory Authority G.S. I13A-I24: 150B-20. 

SUBCHAPTER 7M - GENERAL POLICY 
GUIDELINES FOR THE COASTAL AREA 

SECTION .1100 - POLICIES ON BENEFICIAL 
USE AND AVAILABILITY OF MATERIALS 
RESULTING FROM THE EXCAVATION OR 



7:3 NORTH CAROLINA REGISTER May I, 1992 



222 



PROPOSED RULES 



MAINTENANCE OF NAVIGATIONAL 
CHANNELS 

.1 101 DECLARATION OF GENERAL POLICY 

Certain dredged material disposal practices may 
result in removal of material important to the 
scdm^enl budget of ocean and inlet beaches. 
This may, particularly oyer time. ad\'ersely im- 
pact important natural beach functions especially 
during storm eyents and may increase long term 
erosion rates. Ongoing channel mamtenance re- 
quirements throughout the coastal area also lead 
to the need to construct neu" or expanded dis- 
posal sites as existing sites fill. This is a finan- 
cially and enyironmentally costly undertaking. 
In addition, new sites for disposal are increasingly 
harder to find because of competition from de- 
N'clopment mterests for suitable sites. Iherefore. 
it IS the policy of the State of North Carolina that 
matenal resulting from the e.xca\-ation or main- 
tenance of navigation channels be used in a ben- 
eticial way wherever practicable. 

Statulon Authority G.S. 1 13A-I07. 



.1102 POLICY ST.\TEMENTS 

(a) Clean, beach quality material dredged from 
navigation channels within the acti\'e nearshore. 
beach, or inlet shoal systems must not be re- 
moved permanenth' from the active nearshore. 
beach or inlet shoal system unless no practicable 
alternative exists. Preferably, this dredged mate- 
rial will be disposed of on the ocean beach or 
shallow acti\e nearshore area where environ- 
mentally acceptable and compatible with other 
uses of the beach. 

(b) Research on the beneficial use of dredged 
material, particularly poorlv sorted or line 
grained materials, and on innovative ways to 
dispose of this material so that it is more readily 
accessible for beneficial use i^ encouraged. 

(c) .Matenal in disposal sites not privately 
owned should be available to anyone proposing 
a beneficial use not inconsistent with Paragraph 
(a) of this Rule. 

(d) Restoration of estuarine waters and public 
trust areas adversely impacted bv existing dis- 
posal sites or practices is in the public interest 
and should be encouraged at ever.' opportunity. 

Statuton Authority G.S. Il3.-i-107. 



of Certiftcation intends to amend rule (s J cited as 
ISA XCAC I8D .0105, .0201, .0203, .0205. .030/, 
.0304, .0403 and adopt nde(si cited as 15A 
XCAC ISD .0307. 

1 he proposed effective date of this action is .4 u- 
giist 3, 1992. 

1 he public hearing will be conducted at 9:00 
a.m. on June 9, 1992 at the Jane S. McKimmon 
Center, SC State L'niversitv, Western Boulevard, 
Raleigh, A'.C. 

Ixeasons for Proposed Actions: To establish 
distribution system classification and personnel 
certification grades. To provide for a longer ap- 
plication review period. To improve criteria for 
the revocation and reinstatement of certification. 
To provide conditions for issuing well certif- 
ications to persons holding surface certifications. 



Co 



No 



otice is hereby gi\-en in accordance with G.S. 
J50B-2J.2 that the Department of Emironment. 
Health, and Satural Resources. SCWTTO Board 



omment Procedures: Any person requiring 
information may contact Mr. John C. McTadyen, 
P.O. Box 2^^687, Raleigh, Xorth Carolina 
2''6ll-76S7, Telephone ^919) 733-0379. Written 
comments may be submitted to the above address 
no later than June 1 , 1992. Notice of an oral 
presentation must be gi\-en to the above address 
at least three days prior to the public hearing. 

CHAPTER 18 - ENMRONMENTAL HEALTH 

SLBCHAPTER I8D -WATER TRE.\TMENT 
FACILITY OPER.\TORS 

SECTION .0100 - GENERAL POLICIES 

.0105 DEFINITIONS 

The following definitions shall apply through- 
out this Subchapter: 
(1) ''Acceptable Experience" means the active, 
daily, on-site performance of operational 
duties, including water facihty laboratory 
duties, at a water treatment facihty; a mini- 
mum of 50 percent of the experience re- 
quirement must consist of these duties. This 
50 percent minimum experience may be 50 
percent on-site duties for 100 percent of the 
time period requirements or 100 percent 
on-site duties for 50 percent of the time pe- 
riod requirements. The other 50 percent 
may be in related fields such as wastewater 
facility operation, wastewater laborator.", 
water pumping stations, or water system 
design and engineering. The experience of 
Division of EnvLronmental Health, Public 
Water Supply Section personnel may be ac- 
ceptable if their job duties include inspection 



223 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



or on-site technical assistance of water 
treatment facilities which is sufficient to 
meet the 50 percent minimum. 

(2) "Board" means the Water Treatment Fa- 
cility Operators Board of Certification. 

(3) "Certified Operator" means any holder of 
a certificate issued by the Board in accord- 
ance with the provisions of G.S. 90A-20 to 
-29. 

(4) "College Graduate" means a graduate of 
an accredited four-year institution awarding 
degrees on the bachelor level. 

(5) "Licensee" means any person who holds 
a current certificate issued by the water 
treatment facility operators board of certif- 
ication. 

(6) "Owner" shall mean person, political sub- 
division, fum, corporation, association, 
partnership or non-profit corporation 
formed to op>erate a pubhc water supply fa- 
cility. 

(7) "Pohtical Subdivision" means any city, 
town, county, sanitary district, or other 
governmental agency or privately owned 
public water supply operating a water treat- 
ment facility. 

(8) "Operator in responsible charge" means a 
person designated by the owner of the water 
treatment facility to be responsible for the 
total operation and maintenance of the fa- 
cdity. The operator in responsible charge 
must possess a valid certificate issued by the 
Board equivalent to or exceeding the classi- 
fication of the facility for which he or she is 
designated. The operator in responsible 
charge is actually in charge of the daily op- 
eration and maintenance of the treatment 
facility and shall reside within 50 miles of the 
facility and shall be readily available for 
consultation on the premises of the facility 
in case of an emergency, malfunction or 
breakdown of equipment or other needs. 
No person shall be in responsible charge of 
more than one surface water fadJity or five 
well water facihties without written permis- 
sion from the Board. A request for permis- 
sion shall include documentation that the 
facilities in question can be managed in 
compliance with the requirements of 15A 
NCAC 18C. An owner mav designate a 
different person to be the operator in re- 
sponsible charge for surface water treatment 
facilities, well water facilities, and distnb- 
ution facilities. 

(9) "Secretar)'" shall mean the Secretary of the 
Department of Environment, Health, and 
Natural Resources. 



(10) "Water Treatment Facihties" means any 
facilities for pubhc water supplies including 
source of supply, treatment, storage, pump- 
ing or distribution of water for human con- 
sumption. 

(11) "Service Connection" means a water tap 
made to provide a water connection to the 
water distribution system. 

(12) "Fire Protection System" means dr>' or 
wet sprinkler systems or fire hydrant con- 
nection to the water distribution system. 

Statutory Authority G.S. 90A-21(c). 

SECTION .0200 - QUALIFICATION OF 

APPLICANTS AND CLASSIFICATION OF 

FACILITIES 

.0201 GRADES OF CERTIFICATION 

Applicants for the various grades of certification 
shall meet the following educational and experi- 
ence requirements: 

(1) GRADE A -SURFACE shall have one year 
acceptable experience at a surface water fa- 
cility while holding a Grade B -Surface cer- 
tificate and have satisfactorily completed an 
approved A -Surface school. 

(2) GRADE B -SLRFACE shall: 

(a) Be a college graduate with a baoholor »f 
sci e nc e bachelors degree Ln the physical 
or natural sciences or be a graduate of a 
two year technical program with a di- 
ploma in water and wastewater technol- 
ogy, and have six months of acceptable 
experience at a surface water facihty, or 

(b) Have one year of acceptable experience at 
a surface water facihty while holding a 
Grade C -Surface certificate and have sat- 
isfactorily completed an approved B -Sur- 
face school. 

(3) GRADE C -SURFACE shall: 

(a) Be a college graduate with a bachelor »f 
sci e nc e bachelors degree in the physical 
or natural sciences or be a graduate of a 
two year technical program with a di- 
ploma in water and wastewater technol- 
ogy, and have six months of acceptable 
experience at a surface water facilitv, or 

(b) Be a high school graduate or equivalent, 
have six months acceptable experience at 
a surface water facihty and have satisfac- 
torily completed an approved C -Surface 
school. 

(4) GRADE A-WELL shaU have one year of 
acceptable experience at a weU water facihty 
while holding a Grade B-Well certificate and 
have satisfactorily completed an approved 
A-Well school. 



7:5 NORTH CAROLINA REGISTER May 1,1992 



224 



PROPOSED RULES 



(5) GRADE B-\VELL shaU: 

(a) Be a college graduate with a bacholor &f 
ocionoo bachelors degree in the physical 
or natural saences or be a graduate of a 
two year technical program with a di- 
ploma in water and wastewater technol- 
ogy, and have six months of acceptable 
experience at a well water facility, or 

(b) Have one year of acceptable experience at 
a well water facility while holding a Grade 
C-Well certificate and have satisfactorily 
completed an approved B-Well school. 

(6) GRADE C-WELL shall: 

(a) Be a college graduate with a bacholor ei 
scionco bachelors degree in the physical 
or natural sciences or be a graduate of a 
two year technical program with a di- 
ploma in water and wastewater technol- 
ogs', and have six months of acceptable 
experience at a well water facihtv, or 

(b) Have six months of acceptable experience 
at a well water facilitv and have satisfac- 
toril\' completed an approved C-\\'ell 
school. 

[7] GRADE A-DISTRIBLTION shaU have 
one year of acceptable experience at Grade 
B or higher distnbution system while hold- 
mg a Grade B-Distnbution certificate and 
ha\e satisfactorily completed an approved 
-A-Distribution school, and hold current 
cardiopulmonary resuscitation certificate. 
GRADE B-D1STR1BUTI0\ shall: 



18) 
(a) 



gree in the physical or natural sciences or 
be a graduate of a two year technical pro- 
gram with a diploma in water and 
wastewater technolog\'. and have six 



(bi 



l£i 



months of acceptable experience at a 
Grade B or higher distribution system, or 
Have one year of acceptable expenence at 
a Grade C or higher distribution system 
while holding a Grade C-Distnbution 
certificate and have satisfactorily com- 
pleted an approved B- Distnbution school, 
and 

Pro\ide certification that the appUcant has 
satisfactoril\ made a wet tap on a water 
main under pressure, made a hydrostatic 
pressure test on a segment of water main, 
disassembled and assembled a gate \alve, 
replaced a main \'alve within a lire 
h\drant. and disinfected and sampled a 
water main. 



(9) GRADE C-DISTRIBLTION shall: 

(a) Be a college graduate with a bachelors de- 
gree in the physical or natural sciences, or 
be a graduate of a two year technical pro- 
gram with a diploma in water and 
wastewater technology, and ha\'e six 
months of acceptable experience at a 
Grade C or higher distnbution SN'stem. or 

(b) Be a high school graduate or equi\alent. 
have six months acceptable expenence at 
a Grade C or higher distribution system 
and have satisfactonl\ completed an ap- 
proved C- Distribution school, or 

(c) Ha\e one vear of acceptable experience at 
a Grade C or higher distribution system 



Be a college graduate with a bachelors de- (d) 



and have satisfactorily completed an ap- 
pro\'ed C-Distribution school, and 
Hold a certificate of completion of ap- 
proved trench shoring training. 



Statutory 
90 A- 23. 



Authority G.S. 90A-2Itc}: 90 A- 



.0203 DETERMINATION OF \ ARIOLS CL.ASSES OF CERTIFICATION 

(a) Determination of various classes of certification shall be based on the classification of water 
treatment facUities to be operated. 

(b) The designation of plant classification shall be based on the following point system: 



P.\R„AMETER 

(1) Surface Water Source 

(A) flowing stream 

(B) flowing stream with impoundment 

(C) raw water treatment (CuSO^ , etc.) 

(2) Ground Water Source 

(A) first five wells 

(B) add 1 point per 5 wells or fraction thereof over 5 

(3) Coagulation 

(A) aluminum sulfate, ferric chloride, etc. 

(B) polymer 

(4) Mi.xing 

(A) baftfe 

(B) mechanical 

(C) air 



RATING \ ALLE 

5 

7 
3 

5 
1 

10 
5 

2 
4 
3 



POINTS 



225 



:3 iXORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



(5) Oxidation (pre-treatment) 

(A) C1,0, ; 5 

(B) ozone 5 

(C) KMnO, ; 3 

(D) CI,; 3 

(6) Carbon Treatment 2 

(7) Aeration 

(A) mechanical draft '3 

(B) coke tray/splash tray 2 

(C) diffused 3 

(D) packed tower (VOC reduction) 10 

(8) pH Adjustment (primary) 

(A) NaOH 5 

(B) lime/soda ash 3 

(C) acid (H, SO, , HCl, etc.) 5 

(9) Sedimentation 

(A) standard rate 5 

(B) tube settlers 3 

(C) upflow 8 

(D) pulsators and plates, etc. 5 

(10) Contact Tank 1 

(11) Filtration 

(A) pressure 

(i) sand/anthracite 8 

(ii) synthetic media (birm) 8 

(ui) granular activated carbon (GAC) 10 

(B) gravity 

(i) sand 10 

(ii) anthracite (mixed)/GAC 12 

(iii) with surface wash or air scour 2 

(12) Ion Exchange 

(A) softener, Na cycle 5 

(B) softener, H cycle 7 

(C) Fe and Mn (greensand) 10 

(D) mixed bed or split stream 12 

(13) Lime Softening 

(A) spiractors 10 

(B) clarifier with coagulation 12 

(C) fuel burner (recarbonation) 5 

(14) Phosphate (sequestering agent) 5 

( 1 5) Stabilization 

(A) acid feed 5 

(B) phosphate 2 

(C) caustic (NaOH) 5 

(D) lime /soda ash 3 

(E) contact units (calcifier, etc.) 5 

(16) Reverse Osmosis, Electrodialysis 15 

(17) Disinfection 

(A) gasCI,; 10 

(B) hypochlorite solution 7 

(C) Clj Oj (sodium chlorite and CI, ) 13 

(D) ozone 13 

(E) ammonia and CI, ; 12 

(18) Fluoridation 

(A) saturator 8 

(B) dry feed 8 

(C) solution (acid) 10 



;i9) Pumping 



7:3 NORTH CAROLINA REGISTER May 1, 1992 226 



PROPOSED RULES 



(A) raw 






3 




(B) intermediate 






1 




(C) finished 






3 




(D) system booster 






2 




(20) Storage 










(A) raw 






1 




(B) treated ground level tank 






1 




(C) elevated in system (each extra tank 1 pt) 


2 




(D) hydropneumatic 






2 




(21) Population Served 1 point per 1,000 


persons served 


50 max. 




(22) Plant Capacity 1 point per 1 


MGD 


;;apacity 


25 max. 




(23) On-Site Quality Control 










(A) bacteriological 










(i) MPN/.MF 






5 




(ii) HPC 






2 




(iii) MMO-MUG (Colilert) 






2 




(B) pH 










(i) meter 






2 




(ii) test kit 






1 




(C) fluoride 










(i) meter 






3 




(ii) colorimetric 






3 




(D) chlorine 










(i) titrator 






3 




(ii) colorimeter spec. 






2 




(iii) test kit 










(E) iron 










(F) hardness 










(G) alkalinity 










(H) turbidity 










(I) manganese 










(J) others (1 pt. each) 










(K) A.A. Spec, or G.C. Unit 






5 each 




(c) The designation of distribution 


system 


classifications shall be based 


on system characteristics 


as 


outlined in Rule .0205 of this Section 











Statutory Authority G.S. 90.4-21 (c); 90A-22. 

.0205 CLASSIFICATIONS OF WATER TREATMENT FACILITIES 

(a) Treatment plant classification shall Classification ©f vrr*!»f truatmont facilitit'o ¥i41i be based on the 
source of water and the number of p>oints assigned each facility as taken from the table in Rule .0203(b) 
of this Section. Classifications are as follows: 

Class C 0-50 points 

Class B 51-110 points 

Class A over 1 10 points 

(b) The classification of distribution systems shall be the same as the current plant classification for 
s\stems directly associated with a classified surface water plant or well system as determined bv Para- 
.graph (b) of Rule .1)203 of this Section. 

( 1 ) For systems not directly associated with a classified surface water plant or well system the des- 
ignation of distribution svslems shall be based on the following system characteristics: 

(A) Class C-DIS I'RlBL'l ION shall be any s\stem with greater than 100 ser\ice connections but 
less than 1,001 ser\ice connections, with no tire protection system; 

(B) Class B-DISTRIBI" riON shall be any system with greater than 1.000 service connections 
but less than 3.301 service connections or anv system less than 1 00 1 service connections, with 
a fire protection system; and 

(C) Class A-DISTRIBL'TION shall be any s\stem with greater than 3.300 sen.'ice connections. 
[2] Class CROSS-CONM-CflON-CONTROI shall be any distnbution system with requirement 

for ti\'e or more backflow prevention devices to be mstalled within the water distnbution s\stcm. 



227 



:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



Statutory Authority G.S. 90A-2l(c); 90A-22. 
SECTION .0300 - APPLICATIONS AND FEES 

.0301 APPLICATION FOR EXAM 

(a) AJJ applicants for regular exams shall file 
an application on a form available from: Chair- 
man, N.C. Water Treatment FacHity Operators 
Certification Board, P.O. Box 27687, Raleigh, 
North Carohna 27611-7687. 

(b) Applications for certification must be sub- 
mitted to the Board at least twe i . ^'ooko 30 days 
prior to the date of the examination. 

(c) The application shall include, at least the 
following information: 

(1) biographical data, 

(2) place of employment, 

education, 

work experience, and 

date and location of exam. 

The applicant shall certify that the infor- 
mation given is correct to the best of his his/her 
knowledge. In addition, the applicant's supervi- 
sor shall certify that h» he/she has reviewed the 
application and recommends that the applicant 
be considered for certification by the Board. 

(e) Applicants are required to take the exam- 
ination at the place and date specified on the ap- 
plication. 



Statutory Authority G.S. 90A-25.I; 90A-26. 
SECTION .0400 - ISSUANCE OF CERTIFICATE 

.0403 ISSUANCE OF GRADE CERTIFICATE 

(a) When the names of the operators and the 
grade of their current voluntary certificate are 
known, the Board shall notify tb» town officials 
and the operator involved and upon payment of 
the license fee issue a grade certificate corre- 
sponding to the grade of certification now held 
by the operator. 

(b) To obtain a certificate the applicant shall 
satisfactorily complete an examination except in 
the case of a temporary certificate or when cer- 
tification is by reciprocity, or when the certificate 
is being issued to the holder of a current volun- 
tary certificate pursuant to Paragraph (a) of this 
Rule. 

(c) Any operator holding a valid surface certif- 
ication may petition the Board, and the Board 
may reinstate a revoked, lapsed, or suspended 
well certification if the grade of the surface cer- 
tification is equal to or higher than the grade of 
the weU certification. 

(d) Any operator holding a valid surface certif- 
ication issued prior to .June 30, 1989 may petition 

Statutory Authority G.S. 90A-2l(c); 90A-24. the Board, and the Board may issue an equiv- 



(3) 
(4) 
(5) 
(d) 



.0304 FEE SCHEDULE 

(a) The cost of examination and certification 
shall be twenty doUars ($20.00). 

(b) The cost of a temporary certificate shall be 
eighteen dollars ($18.00) for a new certificate. 

(c) The examination and certification fee must 
be paid to the Board when the appUcation is 
submitted. 

(d) The cost of the annual certification renewal 
shall be eighteen doUars ($18.00). Renewal fees 
shall be payable the first of each calendar year 
and shall be delinquent on the first day of Feb- 
ruary if not paid prior to that date. Delinquent 
certifications shall be charged an additional fee 
of thirty dollars ($30.00) on the first day of Feb- 
ruary of each year. 

(e) The operator shall keep the Board informed 
of his/her current mailing address. 

Statutory Authority G.S. 90A-27. 

.0307 REVOCATION OF CERTIFICATE 

If an operator fails to renew his certificate and 
allows it to lapse five years, his her certificate 
shall be revoked. 



alent well certification without examination if the 
operator has the well facility acceptable experi- 
ence required for certification and satisfactorily 
completes an approved equivalent weU school. 
The Board shall not issue equivalent well certif- 
ication after January ]_^ 1996. 

Statutory Authority G.S. 90A-21(c); 90A-23; 
90A-25. 

TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

lyotice is hereby given in accordance with G.S. 
I50B-2I.2 that the Department of Transportation 
intends to amend rule(s) cited as I9A NCAC 2B 
.0165. 

1 he proposed effective date of this action is Au- 
gust 3, 1992. 

Instructions on how to demand a public hearing: 
A demand for a public hearing must be made in 
writing and mailed to the Department of Trans- 
portation, do A.D. Allison. II. P.O. Box 25201, 



7:3 NORTH CAROLINA REGISTER May I, 1992 



228 



PROPOSED RULES 



Raleigh, N.C. 2761 1 . The demand must be re- 
ceived within 15 days of this Notice. A copy of 
the fiscal note prepared for this proposed amend- 
ment can be obtain from the Department of 
Transportation. 

ixeason for Proposed Action: The amendment 
is needed to enable the Department to contract 
with prhate firms to perform asbestos inspections 
and abatements necessary for the clearing of 
structures on highway right of way. 

y^omment Procedures: Any interested person 
may submit written comments on the proposed 
rule by mailing the comments to the Department 
of Transportation, cjo A.D. Allison, II, P.O. Box 
2520 J, Raleigh, N.C. 27611, within 30 days after 
the proposed rule is published or until the date of 
any public hearing held on the proposed rule, 
whichever is longer. 

jOj ditor's Note: This Rule has been filed as a 
temporary amendment effective May 4, 1992 for 
a Period of 180 days to expire on October 31 , 
1992. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2B - HIGHWAY PLANNING 

SECTION .0100 - RIGHT OF WAY 

.0165 ASBESTOS CONTRACTS 
WITH PRIVATE FIRMS 

(a) The North Carolina Department of Trans- 
portation maintains a staff capable of performing 
the normal workload for most of the functions 
required for the acquisition of rights of way for 
our highway systems. However, it is recognized 
that situations arise and certain specific needs 
exist which can best be met by the use of quali- 
fied consuhants outside the Department. 
These Rules and Regulations are established as 
a guide for the preparation, execution and ad- 
ministration of contracts for Asbestos In- 
spections, Asbestos Removals, and Structure 
Clearings by consultant firms that are over ten 
thousand doUars ($10,000.00). 
Due to the di\ersity of contract types, some 
portions of these Rules and Regulations may not 
be fully applicable to all situations. The Right 
of Way Branch Manager shall be responsible for 
determining deviations from portions of these 
Regulations are justified. .-Vny deviation from 
these Rules will require approval of FHWA if 
Federal Funds are involved in the project. 



These Rules and Regulations have been devel- 
oped in response to and in accordance with the 
foUowing directives and requirements: 

(1) General Statute 136-28.1(1) and General 
Statute 130A-444 thru General Statute 
130A-45I. 

(2) 23 CFR 710-720, FHWA right of way 
regulations which contain some contract- 
ing requirements. 

(3) 49 CFR 18.36, USDOT contracting reg- 
ulations. 

(4) NCDOT Title VI Compliance Program. 
All personnel involved with contracts for 
Asbestos Inspections, Asbestos Removals and 
Structure Clearings shall comply with G.S. 
133-31 and the Department of Transportation 
Personnel Manual, Section VI, entitled "Em- 
ployee Relations". 

(b) DEFINITIONS. The foUowing definitions 
are for the purpose of clarifying and describing 
words and terms used herein: 

(1) Contract Administrator - The individual 
who is assigned the responsibility of initi- 
ating, negotiating, and administering the 
contracts for Asbestos Inspections, 
Asbestos Removals and Structure 
Clearings. 

(2) Cost per Unit of Work - A method of 
compensation based on an agreed cost per 
unit of work includmg actual costs, over- 
head, payroll additives and operating 
margin. 

(3) Cost Plus Fixed Fee - A price on the ac- 
tual allowable cost, iacluding overhead 
and payroll additives, incurred by the firm 
pcrtbrming the work plus a pre- 
established fixed amount for operating 
margin. 

(4) Cost Proposal - A detailed submittal 
specifying the amount of work anticipated 
and compensation requested for the per- 
formance of the specific work or services 
as defmed by the Department. 

(5) Firm - Any private agency, firm, organ- 
ization, business or individual offering 
qualified Asbestos Inspections, Asbestos 
Removals and Structure Clearings. 

(6) Lump Sum - A fixed price, including cost, 
overhead, payroll additives and operating 
margin for the performance of specific 
work or services. 

(7) Payroll Burden - Employer paid fringe 
benefits including employers portion of 
F.I.C.A.. comprehensive health insurance, 
group Ufe insurance, unemployment con- 
tributions to the State, vacation, sick 
leave, hohdays, workers compensation 
and other such benefits. 



229 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(8) Proposal - An expression of interest by a 
firm for performing specific work or ser- 
vices for the Department. 

(9) Scope of Work - All services, actions and 
physical work required by the Department 
to achieve the purpose and objectives de- 
fmed in the contract. Such services may 
include the furnishing of all required la- 
bor, equipment, supplies and materials 
except as specifically stated. 

(10) Contract Amendment - A formal 
amendment which modifies the terms of 
an existing contract. 

(11) Termination Clause - A contract clause 
which allows the Department to termi- 
nate, at its discretion, the performance of 
work, in whole or Ln part, and to make 
fmal payment in accordance with the 
terms of the contract. 

(c) APPLICATION. These Rules and Regu- 
lations shall apply to all Retainer contracts for 
Asbestos Inspections, Asbestos Removals, and 
Structure Clearings obtained by the Right of 
Way Branch of the Department of Transporta- 
tion under the authority of G.S. 136-28. 1(f) and 
in accordance with the provisions of G.S. 
130A-444 through 130A-451. 

(d) SELECTION COMMITTEE. The 
Committee shall consist of the Right of Way 
Branch Manager or his designated Represen- 
tative, the State Relocation Agent and Property 
Manager or his designated Representative, and 
at least one employee of the Department's Pre- 
construction Unit and/or Construction Unit 
Professional Staff designated by the Right of Way 
Branch Manager, and shall be chaired by the 
Right of Way Branch Manager or his Represen- 
tative. 

(e) SELECTION OF FIRMS. On a yearly 
basis (or as needed), the Department shall ad- 
vertise for firms interested in performing 
Asbestos lnsp)ections, Asbestos Removals, and 
Structure Clearings for the North Carolina De- 
partment of Transportation. The advertisement 
will be published in the North Carolina Purchase 
Directory. The response time will normally be 
two weeks after the advertising date. The re- 
sponse shall include copies of the numbered cer- 
tifications of employees certified by NC 
Department of Environment, Health, and Na- 
tural Resources - Occupational Health Section 
Asbestos Program to perform Asbestos In- 
spections, copies of the firms latest brochures, 
and such similar information related to the firms 
qualifications. 

Evaluation of the firms expressing interest will 
be based on the following considerations: 



(1) Possesses a high ethical and professional 
standmg(10%); 

(2) Responsible persormel shall be recognized 
professionals in the field(s) of expertise 
required by the contract and shall possess 
all required State and Federal Certif- 
ications (20%); 

(3) Adequate m both number a»4 quality ef 
staff te p e rform Ae roquirod coP i icBti ex- 
perience in the field(s) of expertise re- 
quired by the contract ( 10%); 

(4) Adequacy in both number and quality of 
staff to perform the required services 
(10%); 

(5) Ability to meet the time schedule estab- 
lished for the work (10%); 

(6) Financial abihty to undertake the pro- 
posed work (10%); 

(7) Adequacy of the firms accounting system 
to identify costs chargeable to the project 
(10%); 

(8) Performance by the firm on previous 
contracts with the Department of Trans- 
portation (10%); 

(9) Any other data pertinent to the contract 
under consideration (5%); 

(10) When pertinent, the firm shall possess the 
quality of equipment necessary to perform 
the required services to the standards ac- 
ceptable to the Selection Committee 
(5%). 
The Selection Committee shall, on the basis of 
the criteria of Subparagraphs (e)(1) through 
(e)(10) of this Rule, select eight firms aft4 tw«- 
altumatos a sufficient number of firms for con- 
tract negotiations in order that those negotiations 
will produce a suflicient number of contracts to 
handle the anticipated work over the next year. 

(f) REQUEST FOR PROPOSALS. Each 
Selected Firm and Alternate wiU be requested by 
the Contract Administrator to submit a Proposal 
which provides for: 

(1) a pef «ftit- eest- fof A '. beotos Inopoctiono 

during tb© yoar'n term ef tl*e contraot; 
Unit Cost for inspection and lab analysis, 
if any; 

(A) per residential unit (800 - 2000 SF 
frame structure -_ maximum of 8 samples); 

(B) per misceUancous non-residential unit 
(less than 800 SF - maximum of 4 samples 

- out buildings, signs, bams, etc.); 

(C) per commercial unit (2.000 to 5.000 SF 

- maximum of J_0 samples; 

(D) per any unit basing areas greater then 
those hsted in Paragraph (f)( 1 ) (A) thru 
(C) (subject to adjustment if appro\ed bv 
the Department): and 



7:3 NORTH CAROLINA REGISTER May 1,1992 



230 



PROPOSED RULES 



(2) a pef oquaro foet- eeet afi4 a pep running 

fcK*4- ee** fof removing aw asb e stos Ffta- 
terial locatt j d t» A« inspoctions proc e ss; 
aft4 a £££ unit cost for [-inal Visual In- 
spection of abated improvements includ- 
ing air monitonna: and 

(3) a Hftrt price fof gen e ral cl e aring ef aft iiH- 

pro' . em e nt from 2,000 - 5,000 oquaro foi4T 
a Hftit price fof general clearing ef aft ifH- 
prosem e nt from 2.000 - 5,000 square fe<*H 
a wwt price fof general cl e aring »f aft ««- 
prosomont over 5,000 oquaro feetr a per 
unit abatement price - to a maximum of 
200 SF or LF^ 

(A) N on- Friable Asbestos; 

[i] £££ square foot of asbestos materials: 
(ii) per linear foot of asbestos materials 

(B) Fnable Asbestos; 

(!) per square foot of asbestos materials: 
(li) per linear foot of asbestos materials; 
and 

(4) a £ier unit cost for general clearings; 
(A~ Residential (up to 1,500 SF); 

(i) per square foot - frame; 

(ii) per square foot -_ masonry or other; 
(B) Commercial (up to 3, OOP SF); 

(i) per square foot - frame; 

(ii) per square foot - masonr\" or other. 
The Proposal Request shall state that the De- 
partment intends to enter into a Retainer Con- 
tract for the term of one year and up to a 
maximum amount of two hundred and fifty 
thousand dollars ($250,000.00) each with m^ a 
sufTicient number of fums on a Statewide basis 
to perform Asbestos Inspections. Asbestos Re- 
moval, and Structure Clearing on an as needed 
basis. 

(g) NEGOTIATION OF CONTRACTS. 
Upon receipt of the Proposals from the right Se- 
lected Firms aft4 twe Alternat e s negotiations 
shall be initiated with the eight Selected Firms to 
produce a Retainer Contract with a term ©» of 
one year and maximum amount of up to two 
hundred and fifty thousand doUars ($250,000.00). 
Should negotiations fails to reach successful exe- 
cution of a contract with any Selected Firm, they 
will be terminated and negotiations wiU be initi- 
ated with an Alternate Firm. 
The object of the negotiations shall be to estab- 
lish an acceptable per unit cost for any Asbestos 
InN'estigations needed by the Department for the 
term of the contract and to establish an accepta- 
ble per square foot cost and per running foot cost 
for abatement of any asbestos discovered upon 
completion of the inspections and a unit cost for 
clearing of impro\ ements. 

WTien agreement is reached on the unit costs, a 
Retainer Contract shall be executed with f4w 



sight Selected Firms a sufficient number of Se- 
lected Firms to perform the anticipated work for 
the term of one year and shall provide ' . ' ■ hich 
pro' . id e s for the scope of ser\ices enumerated in 
this Rule. 

(h) BOARD OF TRANSPORTATION AP- 
PROVAL AND EXECUTION OF CON- 
TRACT. Upon completion of fmal 
negotiations, the firm shall execute a minimum 
of two contract originals. 

The contract shall then be submitted to the State 
Highway Administrator who may consult with 
the Advisory Budget Commission pursuant to 
G.S. 136-28. 1(f). The proposed contract will 
then be submitted to the Board of Transporta- 
tion for approval. 

Upon approval by the Board of Transportation 
the contract will be executed by the Manager of 
Right of Way and returned to the Contract Ad- 
ministrator. The Contract Administrator will 
transmit one original contract to the contracting 
firm and shall retain one original in the Central 
Office. A copy of the contract will be provided 
to the Department's Fiscal Section. 

(i) REQUEST FOR SPECIFIC JOB ESTI- 
MATES. When the Department acquires 
Structures that require inspection for asbestos, 
two firms who have executed the Retainer Con- 
tract will be contracted by the Right of Way 
Branch, given the location of the Structure(s), 
and requested to submit an Work Assignment 
Cost Estimate. The first Firm's estimate shall 
cover Inspections, both preliminary and fmal; 
and the second Firm's Estimate shall be for 
Abatements, if any, and Clearing, if required, of 
the structure. The Estimate of Job Costs sub- 
mitted by the contractor will be reviewed by 
Right of Way Staff Personnel to insure: 

(1) that the per unit cost is in compliance 
with those specified in the Retainer Con- 
tract; and 

(2) the quantities specified in the Estimate 
of Job Costs are reasonable. 

If the estimate is found to be reasonable, the 
Contract Administrator shall authorize the work 
by the Firm under the Retainer Contract by 
signing the Estimate document. If the estimate 
is unacceptable and agreement cannot be reached 
by negotiations with the Firm, an Estimate wiU 
be requested from another Firm on Retainer 
Contract and evaluated m the same m;inner until 
agreement is reached and work can be author- 
ized. 

In the e\ent that an agreement cannot be reached 
through negotiations with an\ hrm on Retainer 
Contract, then the Department shall temiinate 
negotiations and advertise for specilic project 



231 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



bids under the provisions of Paragraph (r) of this 

Rule. 

(j) SUB-CONTRACTING. A Contracting 
Firm may sublet portions of the work proposed 
in the contract only upon approval of the Con- 
tract Administrator. 

The responsibility for procuring a subcontractor 
and assuring the acceptable performance of the 
work hes with the prime contractor. Also, the 
prime contractor will be resp)onsible for submit- 
ting the proper supp>orting data to the Contract 
Administrator for all work that is proposed to 
be sublet. 

(k) METHODS OF COMPENSATION. 
Cost Per Unit of Work - This method of com- 
pensation is suitable for contracts where the 
magnitude of work is uncertain but the character 
of work is known and a cost of the work per unit 
can be determined accurately. 

(1) ADMINISTRATION OF CONTRACT. 
The administration of the contract shall be the 
responsibility of the Contract Administrator. 
This will include the review of invoices and re- 
commendation for payment to the Fiscal Sec- 
tion. 

(m) CONTRACT AMENDMENTS. Each 
contract should contain procedures for contract 
modifications and defme what changes are per- 
mitted by mutual agreement of the parties in- 
volved and the changes that can only be made 
by means of a contract amendment. 
The Contract Administrator with the concur- 
rence of the Manager of Right of Way may au- 
thorize changes involving minor details or 
clarifications, changes in time schedules, and 
other changes of a minor nature which do not 
cause a significant change in the scope of work, 
or a change in the amount of compensation. 
The Department reserves the right with the con- 
currence of the Manager of Right of Way to de- 
lete any clearing item. 

No work is to be performed by the contracting 
fum on additional or disputed items until the 
dispute is resolved and or a contract amendment 
is executed. Contract amendments shall be 
processed using the same procedures as described 
in Subparagraphs (e)(7) and (e)(8) of this Rule. 

(n) MONITORING OF WORK. The re- 
sponsibihty for monitoring the work, the sched- 
ule and performing reviews at intermediate stages 
of the work shall rest with the staff persormel. 
An inspector may be assigned on each job by the 
Division Engineer who shall make periodic status 
reports to the Division Right of Way Office. 
The firm will be required to provide a written 
progress report accompanying each invoice de- 
scribing the work performed for the project cov- 
ered by the invoice. 



(o) FINAL PAYMENT. When it is deter- 
mined that the work is complete, the fmal invoice 
shall be approved by the Contract Administrator 
and forwarded to the Fiscal Section with a re- 
commendation for payment. When the contract 
is terminated by the Department, the fmal pay- 
ment shall be for that portion of work performed. 
Should the firm beheve that additional compen- 
sations and/or time should be allowed for ser- 
vices not covered under the contract, the fum 
must notify the Department in writing within 30 
days after receipt of fmal payment. The Depart- 
ment win render a decision on the claim which 
wUl be fmal, subject to review in accordance with 
Chapter 150B of the North Carolina General 
Statutes. E.xhaustion of the administrative pro- 
cedure described herein shall be a prerequisite to 
the firm's right of review. 

(p) TERMINATION OF CONTRACTS. 
All contracts shall include a provision for the 
termination of the contract by the Department 
with proper notice to the contracting firm. 

(q) QUARTERLY REPORT. A quarterly 
report on the use of outside firms will be sub- 
mitted to the Right of Way Branch Manager. 
This report shall be prepared by the Contract 
Administrator and will be in chart/graphic or 
other appropriate format. Copies shall be pro- 
vided to the State Highway Administrator and 
the Assistant State Highway Administrator. 

(r) CONTRACTS ON SPECIFIC 

PROJECTS. At its discretion, the Department 
may let individual contracts on specific projects 
for inspections, abatements, and'or structure 
clearings to a responsible bidder other than those 
contractors holding the contracts described in 
Paragraphs (a) through (q) of this Rule after 
publicly advertising for bids. Upon determi- 
nation by the .Manager of the Right of Way 
Branch that the project schedule does not allow 
time for public advertising the Department may 
solicit at least three informal bids and award a 
contract to the lowest responding qualified bid- 
der. 

Statutory Authority G.S. 136-2S.lif). 

TITLE 21 - OCCUPATIONAL LICENSING 
BOARD 



No 



otice is hereby given in accordance with G.S. 
I SOB- 2 1. 2 that the North Carolina Board of 
Nursing intends to amend nde(s) cited as 21 
NCAC 36 .0203, .0211, .0218 - .0219. 

1 he proposed effective date of this action is Au- 
gmt 3, 1992. 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



232 



PROPOSED RULES 



1 he public hearing will be conducted at 3:30 
p.m. on May 22. 1992 at the North Carolina 
Board of Nursing Office, 3724 National Drive, 
Suite 201, Raleigh, NC 27612. 

J\eason for Proposed Actions: To be consistent 
with Board policies; to delete item to avoid repe- 
tition (included in Rule .0219); to comply with 
American Disabilities Act and guidelines estab- 
lished by National Council of State Boards of 
Nursing: to reflect change in G.S. 90-171 .33. 

(comment Procedures: Any person wishing to 
present oral testimony relevant to proposed rules 
may register at the door before the hearing begins 
and present hearing officer with a written copy of 
testimony. Written statements may be submitted 
by June 1 , 1992 to the North Carolina Board of 
Nursing, P.O. Box 2129, Raleigh, NC 
27602-2129. 

CHAPTKR 36 - BOARD OF NURSING 
SECTION .0200 - LICENSURE 

.0203 REINSTATEMENT OF LAPSED LICENSE 

(a) The registrant whose license has lapsed and 
who desires reinstatement of that license will: 

furnish information required on forms 
provided by the Board; 
provide a statement of the reason for fail- 
ure to apply for renewal prior to the 
deadline; 

submit evidence of unencumbered license 
in all jurisdictions in which a license is or 
has e\'cr been held; 

submit evidence of completion of all court 
conditions resulting from any 
misdemeanor or felony conviction(s): 
submit such other evidence that the Board 
may require to determine whether the li^ 
cense should be reinstated; and 

(6) frH submit payment of reinstatement and 
renewal fee. etfi4 

(4^ L . ubnut ouch othcir i" . idcnco tfert- th<» Board 
may require te- det e rmin e whether the li- 
c e ns e chould be reinstated. 

(b) The registrant whose license has lapsed for 
a period of five years or more wU] also submit: 

(1) evidence of mental and physical health 
necessary to competently practice nursing; 
evidence of satisfactory completion of a 
Board-approved refresher course; and 

a recent photograph for identification 
purposes, if deemed necessar>'. 

(c) If a refresher course is required, the regis- 
trant must apply for reinstatement of the license 



(1) 

(2) 

(ii 



(2) 
(3) 



within one year of completing the refresher 
course in order to receive a current license. The 
application for reinstatement must include verifi- 
cation from the provider of the refresher course 
that the registrant has satisfactorily met both 
theory and clinical objectives and is deemed 
competent to practice nursing at the appropriate 
level of hcensure. 

(d) The Board may decline to reinstate a license 
if it is not satisfied as to the applicant's ability to 
practice nursing, or it may issue a license for a 
restricted period of time. 

Statutory Authority G.S. 90-171 .23(b); 
90-171.35; 90-171.37. 

.0211 EXAMINATION 

(a) An applicant meets the educational quali- 
fications to write the examination for licensure to 
practice as a registered nurse by: 

( 1 ) graduating from a board approved nursing 
program designed to prepare a person for 
registered nurse licensure: 

(A) apphcants graduating before July 1, 
1981 have no time restrictions on writing 
the examination; 

(B) apphcants graduating after July 1, 1981 
must write the examination within three 
years of graduation. 

(2) graduating from a nursing program outside 
the United States or Canada that is de- 
signed to prepare graduates for the equiv- 
alent of licensure as a registered nurse, and 
submitting the certificate issued by the 
Commission on Graduates of Foreign 
Nursing Schools as evidence of the re- 
quired educational qualifications. 

(b) .Vn applicant meets the educational quali- 
fications to w rite the examination for licensure to 
practice as a hcensed practical nurse by: 

( 1 ) graduating from a Board approved nursing 
program designed to prepare a person for 
practical nurse licensure: 

(A) applicants graduating before July 1, 
1981 have no time restrictions on writing 
the examination; and 

(B) apphcants graduating after July 1, 1981 
must write the examination within three 
years of graduation. 

(2) graduating from a nursing program outside 
the United States or Canada that is de- 
signed to prepare graduates for the equiv- 
alent of hcensure as a hcensed practical 
nurse, and submitting evidence from a 
Board approved evaluation agency of the 
required educational qualifications and 
evidence of English proficiency from a 
Board approved agency or service; 



25i 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(3) graduating within the past three years from 
a Board approved nursing program de- 
signed to prepare graduates for registered 
nurse licensure, and failing to pass the ex- 
amination for registered nurse hcensure; 

(4) graduating from a nursing program outside 
the United States and Canada that is de- 
signed to prepare graduates for registered 
nurse licensure, submitting evidence of 
English proficiency from a Board ap- 
proved agency or service, and failing to 
pass the examination for registered nurse 
licensure in any jurisdiction within the 
past three years; or 

(5) (4} completing a Board approved course 

of study such as offered by the U.S. Navy 
for Hospital Corpsman. Applicants must 
write the examination within three years 
of completing active duty/selected reserve 
duty as a mihtary Hospital Corpsman. 
The Board approved course of study in- 
cludes: 

(A) a course equivalent to the U.S. Navy 
Hospital Corpsman Basic (Class "A") 
course; 

(B) Advancement Examination for Navy 
Hospital Corpsman Third Class or an 
equivalent examination; 

(C) college level human lifespan growth and 
development course; and 

(D) a nursing course provided by the Navy 
or another approved agency that includes 
maternal-child nursing theop.' and clinical, 
the legal role of the LPN, the nursing 
process, and nutrition. 

(c) An application to the Board of Nursing for 
examination shall be submitted at least 60 days 
prior to the examination. t«- inr . tuncor i vi i horo Vh» 
40 4ay d e adline cannot be metr the Board may 
grcmt aft e .xception upon roquoot from the diroo 
tef ef the nuroing oduoational program t» which 
the applicant is onroUod e* from the applicant. 
Pursuant to The Americans with Disabilities Act 

by 



and guidelines estabUshed 
Council of State Board 



_ the National 

of Nursin^^ Inc., the 



Board cannot accept applications received after 
the established deadline date. An admission card 
with specitic information as to time, date, and 
place of examination will be mailed to the apph- 
cant approximately 14 days prior to the date of 
the examination. 

(4^ Tho ' jS applicants who qualify fef e xamina 
tieft m accordanco with Gr^ 00 171.39 w+U be 
iosuod St Statuo A t e mporary licen -' t ' as pro' i idod 
fof ift G.S. 90 171.33. A temporoP i' lioonr . o may 
be withheld ift accordanco w+th Gr^ 90 171.37. 



(d) (e) The examinations for licensure developed 
by the National Council of State Boards of 
Nursing, Inc. shall be the examinations for 
hcensure as a registered nurse or as a licensed 
practical nurse in North Carolina. 

(1) Tliese examinations shall be administered 
in accordance with the contract between 
the Board of Nursing and the National 
Council of State Boards of Nursing, Inc. 

(2) The examination for licensure as a regis- 
tered nurse shall be administered in Feb- 
mary and July on dates determined by the 
National Council of State Boards of 
Nursing, Inc. 

(3) The excunination for hcensure as a hcensed 
practical nurse shall be administered in 
April and October on dates determined 
by the National Council of State Boards 
of Nursing, Inc. 

(4) Scores on the examination shall be re- 
ported, by mail only, to the individual 
apphcant and to the director of the pro- 
gram from which the apphcant was grad- 
uated. Aggregate results from the 
examination(s) may be pubhshed by the 
Board. 

(5) The passing standard score for each of the 
five tests comprising the examination for 
registered nurse hcensure, up to and in- 
cluding the February 1982 examination is 
350. For the examination offered in July 
1982 and through July 1988, the passing 
score is 1600. Beginning February 1989, 
the passing score for registered nurse 
licensure is reported as "PASS". 

(6) The passing score for the examination for 
practical nurse hcensure, up to and in- 
cluding the April 1988 is 350. Beginning 
October 1988, the passing score for prac- 
tical nurse hcensure is reported as 
"PASS". 

(e) (f) AppUcants who meet the qualifications 
for hcensure wiU be issued a certificate of regis- 
tration and a hcense to practice nursing for the 
remainder of the year. 

(f) fg) Applicants for a North Carohna hcense 
may take the examination for hcensure developed 
by the National Council of State Boards of 
Nursing, Inc. in another jurisdiction of the 
United States, providing: 

(1) the Board of Nursing in that jurisdiction 
consents to proctor the apphcant; 

(2) arrangements are made through the North 
Carolina Board of Nursing sufficiently in 
advance of the examination date to meet 
apphcation requirements in both jurisdic- 
tions; and 



7:3 NORTH CAROLINA REGISTER May I, 1992 



234 



PROPOSED RULES 



(3) the applicant pays any service fee charged 
by the proctoring Board. 
(g) ffe) The North Carolina Board of Nursing 
may proctor an examination upon request of 
another state Board of Nursing at the regularly 
scheduled examination sessions if space is a\ail- 
able. The applicant shall submit a ser\'ice fee for 
such proctoring. 



Statutory Authority 
90-171.29: 90-17130. 



G.S. 90-171.23(15); 



.0218 LICENSLRE WITHOUT EXAMINATION 
(B^ ENDORSEMENT) 

(a) TTie Board wiU provide an application form 
which the applicant who wishes to apply for 
licensure without examination (by endorsement) 
must complete in its entirety. 

(1) The apphcant for licensure by endorse- 
ment as a registered nurse is required to 
show evidence of 

(A) completion of a nursing program ap- 
proved by the jurisdiction of original 
licensure; 

(Bj attainment of a standard score equal to 
or exceeding 350 on each test in the State 
Board Test Pool Examination adminis- 
tered prior to July 1982; or a standard 
score of 1600 on the hcensing examination 
developed by the National Council of 
State Boards of Nursing, Inc. begirming in 
July 1982 and up to and includmg the July 
1988 examination; or beginning in Febru- 
ary 1989, a score of "PASS". ,'Vn excep- 
tion to this requirement is made for the 
apphcant who was registered in the ori- 
ginal state prior to April 1964. Such ap- 
phcant must have attained the score, on 
each test in the series, which was required 
by the state issuing the original certificate 
of registration; 

(C) mental and physical health necessary to 
competently practice nursing; afi4 

(D) unencumbered actis i? Hcense in original 
jurisdiction »f hconsur e »f another jurir . 
diction: all jurisdictions in which a hcense 
is or has ever been held; if the license in 
the other junsdiction has been inactive or 
lapsed for five or more years, the apphcant 
will be subject to requirements for a re- 
fresher course as indicated in G.S. 
90-171.35 and 90-171.36; and 

(E) completion of all court conditions re- 
sulting from any misdemeanor or ielonv 
CQn\iction(s). 

(2) The apphcant for hcensure by endorse- 
ment as a licensed practical nurse is re- 
quired to show evidence of: 



(A) completion of: 

(i| a program in practical nursing ap- 
proved m bv the jurisdiction of original 
licensure; or by mooting ^^ roquiro 
m e ntfi as 6it«4 i» ft«k> .031 1 (b)(2)(3) 

(ii) coursefs) of study within an approved 
program(s) which is (are) comparable 
to that required of practical nurse grad- 
uates m North Carohna; or 
(iii) approved course of study for mihtary 
hospital corpsman which is (are) com- 
parable to that required of practical 
nurse graduates in North Carohna. 
The applicant who was graduated prior to 
July 1956 will be considered on an indi- 
vidual basis in hght of hcensure require- 
ments in North Carohna at the time of 
original hcensure; 
(B| achievement of a passing score on the 
State Board Test Pool E.xamination or the 
hcensing examination developed by the 
National Council of State Boards of 
Nursing. Inc. If originally hcensed on or 
after September 1, 1957, and up to and 
including the April 1988 examination, an 
apphcant for a North Carohna hcense as 
a practical nurse on the basis of examina- 
tion in another state must have attained a 
standard score equal to or exceeding 350 
on the hcensure examination. Beginning 
in October 1988, an apphcant must have 
received a score of "PASS" on the 
hcensure examination. The apphcant 
who was hcensed prior to September 1, 
1957 in the original jurisdiction whl be 
considered on an individual basis in hglit 
of the hcensure requirements in North 
Carolina at the time of original hcensure; 

(C) mental and physical health necessary to 
competently practice nursing; aft4 

(D) unencumbered activ e hcense in original 
juriodiction »f hconcuro »f anothor juric 
diction: aU jurisdictions in which a hcense 
is or has e\er been held; if the hcense m 
the other jurisdiction has been inacti\e or 
lapsed for five or more years, the apphcant 
win be subject to requirements for a re- 
fresher course as indicated in G.S. 
90-171.35 and 90-171.36; and 

(E) completion of all court conditions re- 
sulting from any misdemeanor or felony 
con\'iction(s). 

(b) J he North Carolina Board of Nursing will 
require apphcants for hcensure by endorsement 
to provide proof of secondary education 
achievement only if deemed necessary for iden- 
tification, or other just cause. 



2i5 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(c) Individuals Graduates of Canadian nursing 
programs who have been licensed in Canada on 
the basis of the Canadian Nurses' Association 
Test Service Examination (CNATS) written in 
the English language are eligible to apply for 
registration by endorsement provided the appli- 
cant has not failed the examination developed by 
the National Council of State Boards of Nursing, 
Inc. in North Carolina. 



(d) A nurse educated and licensed outside the 
United States of America is eligible for North 
Carolina licensure by endorsement if the nurse 
has: 

(1) proof of education as required by the 
Board or a certificate issued by the Com- 
mission on Graduates of Foreign Nursing 
Schools; and 

(2) proof of passing the licensing examination 
developed by the National Council of 
State Boards of Nursing, Inc. in another 
jurisdiction. An exception to this re- 
quirement is made for the applicant who 
was registered by Canadian province ex- 
amination written in the Endish language 
prior to CNATS or SBTPE, and has 
worked in nursing within the past five 
years or has completed a Board-approved 
refresher course. 

(e) When completed application, evidence of 
current license in another jurisdiction, and fee are 
received in the Board office, a temporary license 
is issued to the applicant. Employer references 
may be requested to validate competent behavior 
to practice nursing. 

(f) Facts provided by the applicant and the 
Board of Nursing of original licensure are com- 
pared to confirm the identity and validity of the 
apphcant's credentials. Status in other states of 
current licensure is verified. When eligibility is 
determined, a certificate of registration and a 
current license for the remainder of the calendar 
year are issued. 



Statutory A uthority 
90-171.33: 90-171.37. 



G.S. 90-I71.23(b); 



.0219 TEMPOR.ARY LICENSE 

(a) The Board of Nursing may issue a Status 
A nonrenewable temporary license under the 
following circumstances. 

(1) A person is eligible for a Status A 
nonrenewable temporary hcense if that 
person: 
(A) has graduated from an approved nurs- 
ing program, filed a completed examina- 
tion application form with correct fee, 
meets all qualifications for licensure by 
examination in North Carolina, and is 



scheduled for the Ucensure examination 
at the first opportunity after graduation; 
or 
(B) has fded an application for licensure 
without examination with correct fee and 
provided verification of awaiting the re- 
sults of the first writing of the examination 
developed by the National Council of 
State Boards of Nursing, Inc. in another 
jurisdiction. 

(2) The Status A nonrenewable temporary li- 
cense expires on the lesser of si* nine 
months or the date a full hcense is issued 
or notice of failure of the examination is 
received. 

(3) Status A temporary hcense authorizes the 
holder to: 

(A) practice only in nursing situations 
where direct supervision by a registered 
nurse is available and at a standard of care 
of a fully hcensed nurse; and 

(B) perform direct patient care only, i.e., 
may not accept authority for nor assume 
responsibility to assign, supervise, or di- 
rect other nursing personnel; and 

(C) participate in such orientation and 
continuing education activities as the em- 
ployer offers to prepare the holder of a 
Status A temporary hcense for the em- 
ployment position. 

(4) Holders of vahd Status A temporary h- 
cense shall identify themselves as R.N. 
AppUcant (R.N.A.) or L.P.N. AppUcant 
(L.P.N. A.), as the case may be, after sig- 
natures on records. 

(5) Upon expiration, revocation, or return of 
the Status A temporary hcense, the indi- 
vidual is inehgible to practice nursing as 
described in Paragraph (a)(3) of this Rule. 

(b) The Board may issue a Status P 
nonrenewable temporary license to persons who 
have filed a completed apphcation for hcensure 
without examination with correct fee and pro- 
vided vahdation of an active hcense in another 
jurisdiction. 

(1) The Status P nonrenewable temporary h- 
cense expires on the lesser of six months 
or the date a full hcense is issued or when 
it is determined the apphcant is not qual- 
ified to practice nursing in North 
Carolina. 

(2) Status P temporary hcense authorizes the 
holder to practice nursing in the same 
manner as a fully hcensed R.N. or L.P.N., 
whichever the case may be. 

(3) Holders of vahd Status P temporary h- 
cense shall identify themselves as R.N. 
Petitioner (R.N. P.) or L.P.N, petitioner 



7:i NORTH CAROLINA REGISTER May 1, 1992 



236 



PROPOSED RULES 



(I.. P.N. P.), as the case may be, after sig- 
natures on records. 
(4) Upon expiration, revocation, or return of 
the Status P temporary' license, the indi- 
vidual is ineligible to practice nursing as 
described in Paragraph (b)(2) of this Rule. 
(c) The Board of Nursing may withhold or 
delay issuance of a temporary license in the fol- 
lowing circumstances: 

( 1 ) a person otherwise eligible for Status A 
temporary' hcense: 

(A) has not completed court conditions re- 
sulting from any felony or misdemeanor 
conviction(s); or 

(B) was convicted of any felony or 
misdemeanor alter enrolling in nursing 
program. 

(2) a person otherwise eligible for Status P 
temporar. license: 

(A) has indicated court conviction(s) have 
occurred; or 

(B) has indicated disciplinary action is 
pending or has occurred in another juris- 
diction. 

(3) a person otherwise eUgible for a temporary' 
license who is the subject of investigation 
or action pursuant to G.S. 90-171.37. 

Statutory Authority G.S. 90-171.33. 

TITLE 25 - OFFICE OF STATE 
PERSONTsEL 



J\ otice is hereby given in accordance with G.S. 
150B-2I.2 that the Office of State Personnel in- 
tends to amend rule(s) cited as 25 NCAC I A 
.0006: IH .0602, .0616 - .06/7, .0621. 

1 he proposed effective date of this action is A u- 
gust 3. 1992. 

1 he public hearing will be conducted at 9:00 
a.m. on June 2, 1992 at the Personnel Develop- 
ment Center, 101 W. Peace Street, Raleigh, N.C. 

JXeasons for Proposed Actions: 

25 NCAC lA .0006 - Rule changed to provide 
clarification of the delegation of authority with 
respect to decentralization. 



25 NCAC IH .0602 

posting procedures. 



Rule amended to clarify 



25 NCAC IH .0617 - Rule changed to clarify the 
employee's responsibility regarding verification of 
identification and employment subsequent to hir- 
ing. 

25 NCAC IH .0621 - Rule changed to provide 
clarification on verification of credentials and re- 
quires verification to be completed within 90 days 
of employment and prior to granting permanent 
status. 



Co 



25 NCAC IH .0616 - Rule changed to clarify ver- 
ification procedures for employers. 



omment Procedures: Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 
by mail addressed to: Barbara Coward, Office 
of State Personnel, 116 W. Jones St., Raleigh, 
N.C. 27603. 

Editor's Sate: Rules 25 NC.4C IH .0602 and 
JJ62I were noticed for amendment in the North 
Carolina Register, Volume 6, Issue 23 on page 
1777. The text printed in italics was adopted by 
the State Personnel Commission and are pending 
review by the Rules Review Commission. Pro- 
posed effective date of these changes is June I, 
1992. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SLBCH AFTER I A - GENERAL PRO\ ISIONS 

.0006 DELEGATION OF AUTHORITY: 
DECENTRALIZATION 

(a) The OfTice of State Personnel, under the 
direction of the State Personnel Director, has sole 
responsibility for the implementation of the State 
Personnel Commission's rules, pohcies and pro- 
cedures. The State Personnel Director has the 
exclusive authority for fmal approval of aU per- 
sonnel actions under these Rules and poUcies. 

(b) The State Persormel Director may delegate 
authority for fmal approval and accountabihty 
of certain personnel actions to the heads of state 
agencies and universities, and by extension, to the 
head of their personnel administration function. 
The decision to delegate authority for fmal ap- 
proval of certain personnel actions or not to del- 
egate, as well as the matters to be delegated, shall 
be at the discretion of the State Personnel Direc- 
tor. The delegation decision by the State Per- 
sonnel Director shall be made based upon these 
factors: 

(4-) Ae willingness ef ugoncy hL ' tid - j aft4 
ohancallors fr» accept the accountability 
»f A«4f ewft personnel functions und e r a 
delegation e^f authority from t^ Office »f 
State Personnel; 



2i7 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



oooporation aft4 



f3^ A# rocord ef agonoy 

procoduroc i ; 
f3) aft informod aodacoment ©f the perform 

anc e histon ©f th^ agonoy'c porsormol 

function; 
(44 t^ domonotratod Icnowledg e aB4 i 

policio ' j aft4 procedur e s by tb» poroonnel 

(§) Ae staff s«e &f the agency poroonnol 
function, including Ae number ef profoo 
oional level personnel pocitiono. 

(1) the acceptance of accountability for their 
own personnel functions by agency heads 
and chancellors under a delegation of au- 
thority from the State Personnel Director; 

(2) the history of agency cooperation and 
compliance with Commission policies and 
related statutes, including practices under 
G.S. 126-5(cl) and related corrective 
actions; 

(3) a pre-assessment of the compliance capa- 
bility of the agency's personnel functions 
and the personnel staff; 

(4) the demonstrated knowledge and expertise 
in the administration of the Commission's 
pohcies and procedures by the personnel 
staff of the agency; 

(5) the maintenance of an adequate staff in the 
agency's personnel functions, including an 
appropriate number of professional level 
positions commensurate with the size and 
complexity of the agency; and 

(6) the maintenance of a quality control plan 
within the agency's personnel functions 
designed to impro\e the professionalism 
of the personnel staff and to produce ac- 
curate data in a current and timely man- 
ner. 

(c) Delegation shall be achieved through de- 
centralization agreements which shall specify 
agency responsibility for implementing Personnel 
Commission programs and shaU identify those 
personnel actions for which the agency shall have 
fmal approval authority. The agreement shall 
provide that the decentralized personnel admin- 
istration authority may be unilaterally withdrawn 
or modified by the State Personnel Director 
based upon demonstrated inability or unwilling- 
ness on the part of the agency or university to 
maintain the level of personnel administration as 
measured by factors in Paraeraph (b) of this 
Rule. 

(d) The Office of State Personnel shall perform 
routine, ongoing monitoring of all agency and 
university decentralization agreements for com- 
pliance with specified levels of authority and with 



Conmiission rules, policies and procedures. The 
Office of State Personnel shall perform periodic 
on-site performance audits. These monitoring 
and auditing procedures shall be in accordance 
with accepted auditing principles and with the 
advice of the State Auditor. 

Statutory Authority G.S. 126-4. 

SLBCHAPTER IH - RECRUITMENT AND 
SELECTION 

SECTION .0600 - GENERAL PROVISIONS 

.0602 POSTING AND ANNOUNCEMENT OF 
VACANCIES 

(a) Vacant positions to be filled in state gov- 
ernment shall be pubhcized by the agency having 
the vacancy to permit an open opportunity for 
all interested employees and applicants to apply. 
The term "agency" as used in this Subsection 
includes all state departments, institutions, com- 
missions, and boards. 

(b) Vacancies which shall be filled from within 
the agency workforce shall be prominently 
posted in at least the followmg locations: 

( 1) The personnel otfice of the agency having 
the vacancy; and 

(2) The particular work unit of the agency 
having the vacancy. 

(c) fb) If the decision is made, initially or at any 
time a vacancy remains open, to receive appli- 
cants from within the overall state government 
workforce, that vacancy shall be hsted with the 
Office of State Personnel for the purpose of in- 
forming current state employees of the opening. 
Such vacancies shall have an apphcation period 
of not less than seven work days from the time 
the listing is received by the Office of State Per- 
sormel. Each vacancy for internal posting or 
hsting with the Office of State Personnel will be 
described in an announcement which includes at 
minimum the position number, title, salary 
range, key duties, knowledge and skill require- 
ments, minimum education and experience 
standard, the application period and the appro- 
priate contact person. Posting requirements shall 
not apply to: 

(1) Vacancies which must be used to meet 
management necessity, for which an 
agency wiU not openly recruit. Examples 
include vacancies committed to a budget 
reduction, vacancies used for disciplinary 
transfers or demotions, use of an existing 
vacancy to avoid reduction in force, 
transfer of an employee to an existing 
opening to a\oid the threat of bodily 
harm, and the promotion of an employee 



7:3 NORTH CAROLINA REGISTER May I, 1992 



238 



PROPOSED RULES 



into an opening under a formal, pre- 
existing "understudy arrangement". 

(2) Vacancies for positions which have been 
designated policy-making exempt under 
G.S. 126-5(d). 

(3) Vacancies which must be filled imme- 
diately to prevent work stoppage in con- 
stant demand situations, or to protect the 
public health, safety, or security. 

(4) Vacancies which are not filled by open 
recruitment, but rather by specific and 
targeted recruitment of special groups for 
the C i ifcc i' 's m Govcrmncni, Model Coop- 
erative Education and state government 
intem programs. 

(5) Vacancies for positions to be filled by chief 
deputies and chief administrative assist- 
ants to elected or appointed department 
heads; and vacancies for positions to be 
filled by confidential assistants and confi- 
dential secretaries to elected or appointed 
department heads, chief deputies, or cliief 
administrative assistants. 

The decision to exercise a vacancy posting ex- 
ception based upon Paragraphs (b)( 1) aft4 (4^ 
(c|( 1 ) and (.3) of this Rule shall be the responsi- 
bihty of the agency head. The Office of State 
Personnel is available upon request to provide 
counsel and guidance in instances of uncertainty. 
(d) ^ If the decision is made, initially or at any 
time a vacancy remains open, to receive appli- 
cants from within the overall state government 
workforce, that vacancy shall be listed with the 
Office of State Personnel for the purpose of in- 
forming current state employees of the opening. 
Such vacancies shall have an application period 
of not less than seven work days from the time 
the listing is received by the Office of State Per- 
sonnel. Each vacancy for internal posting or 
listing with the Office of State Personnel will be 
described in an announcement which includes at 
minimum the position number, title, salary 
range, key duties, knowledge and skill require- 
ments, minimum education and experience 
standard, the application period and the appro- 
priate contact person. The foregoing posting re- 
quirements shall not apply to: 

(1) Vacancies which must be used to meet 
management necessity, for which an 
agency will not openly recruit. E.xamples 
include vacancies committed to a budget 
reduction, vacancies used for discipUnan.' 
transfers or demotions, use of an existing 
\acancy to a\oid reduction in force. 
tr;msfer of an emplo\ee to an existing 
opening to a\'oid the threat of bodily 
hann, and the promotion of an employee 



into an opening under a formal, pre- 
existing "understudy arrangement". 

(2) Vacancies for positions which have been 
designated poUcv-makine exempt under 
G.S. 126- 5(d). 

(3) Vacancies which must be filled imme- 
diately to prevent work stoppage in con- 
stant demand situations, or to protect the 
pubUc health, safety, or security. 

(4) Vacancies which are not filled by open 
recruitment, but rather by specific and 
targeted recruitment of special groups for 
the Carcors m Govofumonl, .Model Coop- 
erative Education and state government 
intem programs. 

(e) fd-^ Any vacancy for which an agency wishes 
to consider outside apphcants or outside appli- 
cants concurrently with the state go\emment 
work force shall be listed simultaneously with the 
appropriate Employment Security Commission 
office, as required by G.S. 96-29, and with the 
Counseling «*W Cwcor Support I nil Employment 
Practices and Priorities Dhision of the Office of 
State Personnel. Listings will include the ap- 
propriate announcement information and vacan- 
cies so hsted shaU have an appUcation period of 
not less than seven work days. 

(f} f#) If an agency makes an initial effort to fill 
a vacancy from within the state government work 
force only, and is unsuccessful, the fisting with 
the Employment Security Commission would 
take place when a decision is made to recruit 
outside. A vacancy which an agency will not fiU 
for any reason should not be listed; if conditions 
change, it should then be treated as a new va- 
cancy. 

(g) -hl-t- I'lie Office of State Personnel may with- 
hold approval for an ai^ency to fill a job vdcancy 
if the a'jency cannot prove to_ tjie_ satisfaction of the 
C Office of Stale Personnel that ij_ complied with 
these posting requirements. [£ any agency hires 
any per '^ on in violation of these posting require- 
ments, and ii ij_ determined by the Office of Slate 
Personnel that ihe employment of t_he_ person hired 
must be_ dncontinued as a result of 'J}£ posting vi- 
olation, the agency shall pay such person for the 
work performed durin'^ the period of lime between 
his her initial employment and separation. 

(h) f^ When a vacancy ij_ listed with the Em- 
ployment Security Commission, the listing agency 
may nut fill the job opening for at_ least 21 days 
after the listing has been filed and the local office 
with which the listing is_ made shall b£ notified by 
the agency within ff days after the vacancy /£ 
filled. L pon agency request the Employment Se- 
curity Commission may wan-e the wailing period 
for filling listed vacancies in_ [of classifications for 
which the State Personnel Commission has recog- 



239 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



nized candidates are in short supply if i_l hinders 
the agency in providing essential services. 



Statutory Authority G.S. 
126-5(d): 126-7.1. 



96-29; 126-4(4); 



.0616 AGENCY RESPONSIBILITY 

(a) The Immigration Reform and Control Act 
(IRCA) of 1986 requires that all L.S. employees 
be either United States citizens, or aliens with 
proper work authorization from the U.S. Immi- 
gration and Naturalization Service (INS). The 
IRCA further requires that all employers yenfy 
the employment eligibility of persons employed 
after November 6^ 1986. 

(b) faj- All state agencies and universities shall, 
within throo worldng days from entr)' e« duty, 
at the time of hire or no later than the third 
working day, verify the employment eligibility of 
all new employees hired »» ©f after November 
^ 6j 1986. Verification must establish both 
identity and employment authorization, and shall 
include the completion of federal Form 1-9. INS 
has approved a number of documents which the 
employee can provide to meet this purpose, and 
it is not permissible for agencies to specify a cer- 
tain document type. Form 1-9 must be retained 
for three years after the employee's hiring date, 
or one year after the employee's separation, 
whichever is later. 

(c) ffe^ If aJi employee's work authorization ex- 
pires, the agency shall update the Form 1-9 to 
show that the employee has a renewed authori- 
zation to continue employment; if an authori- 
zation renewal cannot be obtained, employment 
must be discontinued. If a prior employee is re- 
employed within three years of the initial com- 
pletion of Form 1-9, aft4 tiie informati eft eft Ae 
initial form romaino accurat e , it- i* Bet- noooosarvf 
fof Ae employing agoncy te oomploto a Hew 
Form i-9r the employing age^c\^ must update 
and verify eUgibUity. In instances of promotion, 
demotion, and/or reemployment involving inter- 
agency transfer, the original, employing agency 
must provide to the employee or the receiving 
agency, upon request, a copy of the most recent 
Form 1-9. 

Authority G.S. 126-4(4); 8 C.F.R. Parts J 09 and 

274a. 1987. 

.0617 EMPLOYEE'S RESPONSIBILITY 

All employees hired eft ef after November ^ 6^ 
1986, must present documents to the employing 
agency or university within tfew fifi* throo wefk 
day* at the time of hire or no later than the third 
working day which verify their identity and em- 



ployment authorijation. eh.gibility. If an em- 
ployee is unable to present the actual documents 
within this time limit, he/she must present a re- 
ceipt from INS within the three day period vali- 
dating his/her appUcation for the required 
documents, and must provide the actual docu- 
ments within 34- 90 days of initial employment. 
An employee whose original work authorization 
has expired must present proof of an authori- 
zation renewal in order to remain employed. 

Authority G.S. 126-4(4); 8 C.F.R. Parts 109 and 
274a. 1987. 

.0621 AGENCY CERTIFICATION 

Each agency must certify on the Form FD-107 
submitted to t_he Office of State Personnel for the 
certification of a new employee that academic and 
professional credentials have been or will be ver- 
ified in accordance with statutes, poUcies, and 
procedures within 90 days of initial employment 
and prior to the granting of permanent status. 
Lack ef f i uch cortification wili roquiro that- tbe 
forms implomonting Ae hiring procoso be placod 
jft susponoo until tfee propor certification is oup 
phed. 

Statutory Authority G.S. 126-4; 126-30. 

****************** 



Jyotice is hereby given in accordance with G.S. 
150B-21.2 that the Office of State Personnel in- 
tends to amend rule(s) cited as 25 NCAC IE 
.1302 Kith changes from the proposed text noticed 
in the Register, Volume 6, Issue 23, pages 1782 - 
1783. 

1 he proposed effective date of this action is Au- 
gust 3, 1992. 

Ixeason for Proposed Action: To provide guid- 
ance and clarification to agencies and universities 
in implementing the program, this proposed 
amendment indicates that participation is limited 
to long term or prolonged illnesses and specifies 
the relationship of this program to disability ben- 
efits, clarifies familial relationships regarding re- 
cipient participation. 



Co 



■ omment Procedures: Interested persons may 
present statements in writing by mail addressed 
to: Barbara Coward, Office of State Personnel, 
116 W. Jones St., Raleigh. N.C. 27603. Com- 
ments are to be received by June 1, 1992. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



240 



PROPOSED RULES 



tLdito/s \ote: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register unless the 
agency publishes the text of the proposed different 
rule and accepts comments on the nen' text for at 
least 30 days after the publication of the new text. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER IE - EMPLOYEE BENEFITS 

SECTION .1300 - \ OLUNTAR^ SHARED LEAVE 
PROGRAM 

.1302 POLICY 

(a) In thoDO cases of a serious and prolonged 
medical condition an employee may apply for or 
be nominated to become a recipient of leave 
transferred from the vacation leave account of 
another employee within their agencv or from the 
sick lea\e or vacation account of an immediate 
fami]\' member in any agency. For purposes of 
this policy. Rule, medical condition means med- 
ical condition of an emplo\"ee or a family mem- 
ber [spouse, parents, children (including step 
relationships) or other dependents li\ing in the 
emploNce s houscholdl of such employee that is 
likely to require an employee's absence from duty 
for a prolonged penod ef timo aft4 to FL '-. ult ifl- a 
oubctantial le** e4" moomo to rf^e omployco (!«<» 
to limit L'd leav e i» t4» employo i jo loavo account. 
generalh' considered to be at least 20 consecutive 
workdays. If an employee has had pre\ious 
random absences for the same condition that has 
caused cxcessi\e absences, or if the employee has 
had a previous, but d liferent, prolonized medical 
condition withm the last 12 months, an exception 
to the 20 day period may be made. T he intent 
of this policy Rule is to allow one employee to 
assist another in cases of a crisis involving a seri- 
ous or prolonged medical condition. It is not the 
intent of this pohcy Rule to apply to incidental, 
normal short-term medical conditions. The 
transfer and use of \'acation or sick leave from 
one mdniduaJ to another is specifically prohib- 
ited unless allowable withm this Rule. &» » 
L ' hared bcu . i ' : . fof »»¥ purpouo othL ' r them L . peciliod 
hf Amt policy » prohibited. 

(b) .An employee who has a medical condition 
and who receives benefits from the Disability In- 
come Plan of North Ciirolina (DIPNC) is not 
eligible to participate in the shared leave pro- 
gram. Shared leave, ho\\e\er. mas' be used dur- 
ing the required waiting period and fQllowing the 
waitum period prosided DIPNC benefits ha\e 
not begun. 

(c) Participation in this program is limited to 
1,040 hours, (prorated for part-time employees). 



either continuously or, if for the same condition, 
on a recurring basis. However, management may 
grant employees continuation in the program, 
month by month, for a maximum of 2,080 hours, 
if management would have otherwise granted 
leave without pay. 

(d) .\n employee on workers' compensation 
leave who is drawing temporary total disability 
compensation may be eligible to participate in 
this program. Use of donated leave under the 
workers' compensation program would be lim- 
ited to use during tbe r e quir e d waiting p e riod afi4 
to with the supplemental leave schedule pub- 
lished by the Office of State Personnel. 

(e) Subject to the maximum of 1,040 hours, the 
number of hours of leave an employee can re- 
ceive is equal to the projected recovery or treat- 
ment penod, less the employee's combined 
vacation and sick leave balance as of the begin- 
ning of the recovery or treatment period. The 
employee must exhaust all available leave before 
using donated leave. 

(f) NonqualiiNing conditions: This Rule does 
not apply to short-term or sporadic conditions 
or illnesses that are common, expected or antic- 
ipated. This would include such things as spo 



radic, short-term recurrences of chronic allergies 
or conditions; short-term absences due to conta- 
gious diseases: short-term, recurring medical or 
therapeutic treatments. Pregnancy is not co\ered 
unless there are unforeseen complications. The 
"normal" six- week recovery' period after deli\er\' 
is not a condition covered by this Rule. Shared 
leave cannot be used durmg the six-week period, 
regardless of the nature or cause of a condition 
or its date of onset. These examples are illustra- 
tive, not all inclusive. F.ach case must be exam- 
mcd and decided based on its confonmitv to the 
intent of this Rule and must be applied consist- 
ently and equitably. 

Statutory Authority G.S. 126-4. 



lyotice is hereby given in accordance with G.S. 
150B-2I.2 that the Office of State Personnel in- 
tends to repeal rule(s) cited as 25 \CAC II 
.0102. .0201 - .0206. .0302 - .03/6. .0401 - .0402, 
.0501 - .0511. .0601 - .0606. .0701 - .0708. .1001 

- .1002. .1005. .1007. .1009 - .1013. .1103. .1201 

- .1204. .1206 - .1210, .1315. .1402 - .1403, .1405 

- .1413. .1501 - .1508, .1601 - .1603; and adopt 
rukisi cited as 25 NCAC 11 .1701 - .1704, .1801 

- .1806, .1901 - .1905, .2001 - .2005. .2101 - .2107. 
.2201. .2301 - .2308, .2401 - .2406. 



241 



NORTH CAROLINA REGISTER Mav 1, 1992 



PROPOSED RULES 



1 he proposed effective date of this action is Au- 
gust 3, 1992. 

1 he public hearing will be conducted at 9:00 
a.m. on June 2, 1992 at the Personnel Develop- 
ment Center, 101 W. Peace Street, Raleigh, N.C. 

iXeasons for Proposed Actions: 

25 NCAC II .0102, .0201 - .0206, .0302 - .0316, .0401 

- .0402, .0501 - .0511, .0601 - .0606, .0701 - .0708, 
.1001 - .1002, .1005, .1007, .1009 - .1013, .1 103, .1201 

- .1204, .1206 - .1210, .1315, .1402 - .1403, .1405 - 
.1412, .1501 - .1508, .1601 - .1603 - Repeal outdated 
policies no longer utilized. 

25 NCAC II .1701 - .1704, .1801 - .1806, .1901 - 
.1905, .2001 - .2005, .2101 - .2107, .2201, .2301 - 
.2308, .2401 - .2406 - The following proposed rules 
are to replace out of date rules in the process of 
being repealed. 



Co 



' omment Procedures: Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 
by mail addressed to: Barbara Coward, Office 
of State Personnel, 116 W. Jones St., Raleigh, 
N.C. 27603. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER II - SERVICE TO LOCAL 
GOVERNMENT 

SECTION .0100 - GENERAL PROVISIONS 

.0102 AUTHORITY FOR CLASSIFICATION 
PLAN 

(*) Tke Stato Porsonnol Director k authorijod 
te allocato aft4 reallooate individual positiono 

aft4 pay plan. 

(^ ¥be Stato Porsonnel Director ie authorijod 
te modify tbe basic e otabliohod classLTication plan 
fof local go^'emmont positions subjoot te Chap 
tef 4-34 ©f the North Carolina General Statutes 
ponding fmal approval ef tbe Stat e Porsonnel 
Commisoion aft4 tb» Governor. 

Statutory Authority G.S. 126-3; 126-4(1); 
1 26-5 (a). 

SECTION .0200 - LOCAL GOVERNMENT 
EMPLOYMENT POLICIES 

.0201 APPLICABILITY 

Stete kw (N.C.G.S. Chapter 4^ ^^^ State 
Personnel Act") prosidos fof th« ootablishmont 



©f a oyotom »f porsonnel administration applica 
We te certain local omployoos pai4 e ntir e ly ©f ift 
part from fodoral funds. Local governing boards 
are authorized by G.S. Chapter 4^ t© e stabUsh 
porsonnel systems >vhioh Vrii4 folly comply wid* 
tfe« applicable f e deral standards aft4 fftay tfeea 
remove ouch omployooo from tfe» state system t© 
th e ir ©¥r4* syst e m. 

Statutory Authority G.S. 126-1; 126-11. 

.0202 COVERAGE 

(a) The provisions ©f Chapt e r 4-34 apply te 
omployooo ef local social ser i ^ico departments, 
public health departments, mental health oontors 
aft4 local ofTioos ©f eivii preparednooo V i 'liioh Fe- 
c e iv e fodoral grant in aid funds. ?4*© Govomor, 
witfe the approval ©4^ the Council ef State, d e t e r 
mines fof »'hich ©f the positions subject t© t4*e 
provioiono ©f iiVrticlo 4- ©f Chapter 454 appoint 
m e nts aft4 promotions shall h% based ©» a com 
potitivo oyotom ©f oelootion. Coverago may 
change from ttfH© te time. ¥i*e follo' . ' . 'ing posi 
tiono have boon designated by the Governor aR4 
Council ©f Stat e t© be till e d through a compet 
itive system ©f oeloction: 

(4} aU positions fo* omployooo ©f tiie local 
social s e r i' ic e departmonto o.tcopt m e m 
befft ©f local boards ©f oooial sop i dco, ©46- 
cialo so P l ying e?t officio afi4 performing 
incidental administrati' i -e duties, part time 
profossional persons wb© aje fi©t engaged 
m t4*e perform a ftee ©f administrativo du- 
ties a«4 custodial omployooo; 
(3)- al4 positions fef omployooo ©f local public 
health departments except memb e rs ©f the 
local boards ©f health, members ©f a4vi- 
s©fy councils ©f committoos, officials 
sorS ' ing e* officio aft4 p e rforming inci 
dental administrativ e duti e s, part tim e 
professional p e rsons who afe H©t engaged 
m the performanc e ©f adminiotrati' i o 4«- 
tiesr part time clerical omployooo m ©f- 
ganii'.ed health clinics ' . vhich are op e rat e d 

^^t ^^j3^^^^ ^^^j^^^- tl^^^ji ^I^^^ i^^^^^^^^^^i ^^^^^^^^ 1^^^^^^^^ 
tX~ Z U IH^CT TTTTT^r rTTTTTT 1 1 IV i \-'IL,l-l IU.1 !_' 1 1 1 1-.'V,' 1 11..' Ul U 

©4' the local h e alth department aftd V i 'hich 
r e quire ©©t mor e than 4-0 hours pef week 
©ft the part ©f afty ©fie omployoo, afi4 
ouotodial employees; 
f^ att positions fef emplo)eos ©f local m e ntal 

ll^JLLl III \J\J 1 1 1 1^ I U l_ JVH_T^ r 1 1 1\_1 1 1 t_n_'I L' OT 11 IV-. ITT^Ttr 

m e ntal h e alth authority, members ©f ad- 
vioor)' counodo ©f committeos, officials 
sop i 'ing e* officio afi4 perfonning inci 
dental administrati' ie duties, part time 
professional p e rsons ¥r4*© afe fi©t engaged 
ift the perfonnano e ©f administrative d«- 
tie* afi4 custodial omployoos; 



7:3 NORTH CAROLINA REGISTER May I, 1992 



242 



PROPOSED RULES 



f44 aU pof i itiono fef omployooo g»f local officos 
»f cmorgcncy manugomL'nt oxoopt dir e c 
te*s Bi Ae ofTic e Q ©f omorgonoy monago 
mont, momboro ef local boards »f 
commic i fiions, mcmborLi »f advi ' .iOP r ' ooun 
Gfk »f committoi'u »f i i imilar boards pai4 
&ftiy fof attendance at- moL'tingo, offioialu 
soning e* ofTioio aft4 performing inci 
dental adminiritrativo dutieu, part timo 
profoDoional porr . onnol who aje paj4 fof 
any form »f medical ef other profeooional 
seP i ioes aft4 Vi4*& afe Bet ongagod ift A« 
performanc e ef administrativ e dutioG, a^ 
tomeys oorving a* legal oounr . el, ali em- 

offices »f omorgency managoment mi^ e^ 
fic e s who 4» Bet- desire te receiv e fodoral 
matching funds fef porsonnol aB4 admin 
istrativo costs afi4 custodial omployooo. 
fb^ te- addition te- tfee e xc e ptions stated ift this 

\. U 1 1^' , I i 1 \_-' I U I I ILl T ^ TTTTT7TT rCTTTT^TTTT 1 1 T.,' Ill TTTCT C,T_/ f^-'l IH7I 

e* aft¥ agency »f department h e ad, be oxomptod 
from t4*e compotitive ser . 'ice Ae following: 

f-1-} e x e cutiv e heads »f departments, agencies, 
offices ef divisions afi4 omployoos roport 
iftg directly to these who detennin e aB4 
publicly advocate substantiate program 
policy, provid e l e gal counsel, ef af» Fe- 
quired te- maintain a direct confidential 
working relationship with »ft« ef these 
exempt otTicials; 

tomporary positions established fof tfee 
purpos e »f conducting a sp e cial project, 
study, »f in' . ostigation, aft4 positions ift 
experimental Bf research projects designed 
te- improve the operation »f the Compet 
iti¥e Sop i ico System. Department ef 
agency heads fi»y submit te the State 
Personnel Director a request fof such e^t- 
emption from &fte ef moro ef the com 
petitiv e service policies e stablished by- the 
State Personnel Commission. A vvaii i 'or 
penod ef tip to twe years may be Fe- 
quested, with the possibility el extension. 
^fte roque ^ it must contain a detailed 4e- 
scription »t- the project aft4 its objectives. 
Satisfactory plans fef Comp e titiv e SeP i 'ice 
System improvement projects wtH- be 
submitted te- the IS. OlTice ef Personn e l 
Management (regional offic e ) fef ap- 
pro' i al; such approval must be received 
before those projects eaft be implemented. 

Statutory Authority G.S. 126-12. 

.0203 EQUAL EMPLOYMENT OPPORTLMTY 

fa-)- AtTirmatise i\ction 



(^ 



f44 -fb^ Stat e Porsonnol Commiooion ha* 
provid e d that e qual omploymont oppor 
t unity i* a» ostabliohod policy sf the State 
ef North Carolina, aft4 aiTumativ e action 
wii^ be provided i» its administration. 

(4+ 4^ Fqual Hmploym e nt Opportunity 
Commission, as a matt e r »f interim guid 
anc e , h** ruled that soxual harassment, 
' ■ ■ . here conditions afi4 privileg e s »f efft- 
ploym e nt afe dopondont upon soxual fo- 
vors, is a form ef discrimination »» the 

I I \ 1 1 f- 1-1 ■ 1 1 1 i^^i tl^^ -wnk i- -r^ i~i r\ c tr\ t 1 1 i -f r i~^ i 1 .--\ ■— -i I » i i «-t n-- 

^ ^' 7 TT L'l lU-LI l.'^ 1 1 lU I \-'JI-'VJ liJIl'llllT Lf I H-^-TU J til x\.J 

dictions te- develop a«4 implement affrr 
mative action programs, consist e nt with 
these pohcios, fof personn e l services pro 
vided te afl4 porsonnol administration 
within subj e ct grant aided ag e nci e s. 
Those programs wili include: 

frV^ identification aft4 elimination ef artifi 
Gtai barriers te e qual e mploym e nt oppor 
tunity; 

{&} wefh force analysis te det e rmin e 
whether poroontagos ef minorities aft4 
women omployod ift various jeh catego 

ef thos e groups available ift the relevant 

related qualifications. Wh e r e undorropro 
sontalion occurs, employment proc e dur e s 
wi4i be analyzed te detennin e the caus e ; 
fG^ development ef a syst e matic action 
plan, with goals aB4 timetables, fomiu 
kited te corr e ct aH¥ substantial disparities 
ep other problems id e ntifi e d ift the work 
forc e aft4 employment analyses; 
f©^ periodic evaluation ef results te ass e ss 
the eff e ctiv e n e ss ef the affumotive action 
programs ift aohio' i ing affiFmatise action 
goals eft a timely basis; 

{4j- The Office ef Stat e P e rsonn e l wiW be 
availabl e te prt)vido technica l assistance ift 
meeting pohcy requirements i» accord 
aft«e w+th Gr^ 136 10. 
fb) Political Activity 

f44 Every employee wtii hav e the right te 
freely express his vie>vs as a citb'.on aft4 te 
east his vot e . Coercion fof political fH«^ 
poses ef aftd by employees ef federally 
aided programs aft4 Hse ef thoir positions 
fof political purpos e s w+il be prohibited. 
Participation ift partisan political activity 
by- afty employee subject te these stand 
afds is prohibited with respect te afty ae- 
tivity prohibited ift federally grant aided 
programs under the federal Hatch 
Political Activities Aet as amended, ^ 
^r^G 1501 1508. 



243 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(5) A»y violation ©f tfe« Rul e ms^ be Ge«- 

omployoo. 
(e^ App e al ef DiDcrimination 
fi) rWr applicant ©f omployo e wbe believ e s 
tbrrt omploymont, promotion, training, 
tranofor ef ealar> ' incroar i O was denied ef 
Aa* d e motion, tranofor, lay off »f tormi 
nation was forced becaus e »f rac e , color, 
national origin »f political ef religious 
opinions e* afTiliations FHay appeal to tfe* 
Stat e Peroonnol Commic i oion (ouch appeal 
consisting ef a contest e d ease hearing be- 
fore th« Offic e si Administrative 1 loarings 

CtTtTi CT I II ILL! UL.^-"! S^^^T tT^ CIWJ L^UIV 1 VII.WJILIIVI 

Commission). Appeal may ak© be fi}e4 
if discrimination »» tbe basis ef ag»7 swt 
ef handicapping condition di4 H©t result 
from bona fide occupational qualifica 
tions. 
f3) tf t» ite r e view ef tbe complaint t4^e State 
Personnel Commission determin es tbat 
tbe plaintiff was discriminated against, it- 
shaU within five days issue binding 6»f- 
rective orders »f such other appropriat e 
action as tbe commission shall 6ft4 justi 
fied- 

Authority G.S. 126-16: 126-17; 126-36; 126.36.1; 
J68A-3; Title VII of the 1964 Civil Rights Act as 
amended in 1972; Federal Standards for a Merit 
System of Personnel Administration; 5 USC 
1501-1508; P.L. 95-256. 

.0204 EMPLOYMENT OF RELATIVES 

(*)• ¥be e mploym e nt ef clos e relatives within 
the same department ©f work «ftit- ©f a local 
government agency subject t©- G.S. Chapter 4-34 
is t» be avoided unless significant recruitment 
difficulties exist. If there a*e fewer than three 
other availabl e e ligibl e s f©f a vacancy afi4 it is 
neooooary f©f r e latives t© be considered fef em- 
ploymont ©f if tw© individuals afe already em- 
ployed aft4 marn , -, tbe following ¥rt4i apply: 

Two members ©f as imm e diat e family shall 

R©t- be employed within tbe same depart 

ment ©f work Hfiit ©f a local goi i emment 

agency subject t©- Gr^ Chapter 4-34 if such 

e mployment wtli result m ©fte supers ' ising a 

member ©f bis immediate family ©f wh e r e 

©He member occupies a position i . >hich bas 

influ e nce over tbe oth e rs e mployment, pte- 

motion, salary' admimstration afi4 other w- 

lated management ©f p e rsonnel 

considerations. 

fb) ?4*e term 'immediate family" shall be «h- 

derstood *©• refer t© tbat degre e ©f closeness ©f 

relationship which would suggest that problems 



public's philosophy ©f faif play ift pro' . iding 
e qual opportunity f©f omplo>ment t© aU quali 
fie4 individuals would be violated. 1» general 

♦ til f ^ 1 ;j~v 1 1 1 ^ < T-»/--l 1 1 i^ ja iirir^i t-» ■ i i- 1-\ ■> »-i .-1 «-»-t /-i 4 V» j-i «- t --i t Vt rtT- 
H 11 J " \J UIU 11 It I Lnj \J TT LIU , 1 1 UV^^JI »*J" ^^^^'^T^t^^Y lU 1 1 ^^^^ 

brother, sister, s©«7 daughter, grandmother, 
grandfather, grandson aft4 granddaughter. jVIso 
includ e d afe tbe stop, half afi4 in law relation 
ships as appropriate bas e d ©» tbe above hsting. 
It f»ay als© includ e oth e rs living within the som e 
hous e hold ©f othep . vis e closely id e ntifi e d witfe 
each other as t© suggest difficulty may develop. 

Statutory Authority G.S. 126-4. 

.0205 CONFLICTING EMPLOYMENT 

L ^ \J \JllllJ 1\J J \J^ TTTTCm rTTTT^T LXI IT \_f 1 1 I \,'\J U 1 I lU, T ^ LT 11 1 VF 

employment which Fftay conflict ¥4tb bis ens- 
ployment ift a computiti' i 'o s e rs'ice agency. Ter 
minal l e av e shall f^e^ be conoidorod as 
employment fof tbis purpos e . Detormination ©f 
conflict shall be mad e by tbe agency aft4 tbe 
Stat e P e rsonn e l Commission. 

Statutory Authority G.S. 126-4. 

.0206 PERSONNEL RECORDS AND REPORTS 

Such personn e l r e cords as afe necessary f©f tbe 
prop e r administration ©f a competitive ser i 'icQ 
syst e m af»4 r e lat e d programs vrill be maintained. 
P e riodic r e ports will be prepared as necessar>^ t© 
indicat e complianc e with applicabl e state aR4 1©- 
eal requirements awd tbe f e deral aft4 state stand 

f44 P e rsonn e l R e cords. Hach agency shall 
maintain a s e r^ i ic e r e cord f&f e ach employee 
including nam e , position title, organization 
unit, an changes i» status, performance 
evaluations aH4 other information consid 
efe4 pertinent. Personnel changes shall be 
submitted ©ft- prescribed forms te ag e ncy 
personnel offices sif><^ t© tbe Office ©f Stat e 
Personnel. 

f3) Payroll Records. A tfwe copy ©f tbe payroll 
©f each local social s e rvices, public health, 
mental health afi4 eivil preparedness ©ftit- 
shall be submitted t© tbe agency personnel 
and/or budget offices within tw© ' ■ ' ■ 'eoko fel- 
lowing e ach payroll p e riod. Tbe payroll i«- 
formation shall be used ift re' i iewing 

f .^ ft Tr-> «-T-T-l itl r V\T ,■ I i-X J-' ■"! I ^^Tl^^ ^^i 4.11 r- t '^ r-^l » L- Vl ^l.-l jTlT^^^ 

afi4 regulations. 

Authority G.S. 126-4; 153.4-98; Standards for a 
Merit System of Personnel .A dministration. 

SECTION .0300 - LOCAL GO\ ERNMENT 
POSLFION ANALYSIS 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



244 



PROPOSED RULES 



.0302 ORGANIZATION 

ef a ooction head wfee » aidod t>y porGormol afta- 
lyoto aft4 tochnicionG, adminiotrativo asoiotanto, 
ooorotariof f afi4 other employooG as d e signated hf 
A* Stutcj PLTGonncl Diroctor. 

Statutory Authority G.S. J 26-4. 

.0303 DEFINITIONS 

?4*e following dufinitiono shall apply te tkis 
S e ction: 
(-)-) PoGition. A group »f duties aft4 roGpooGi 
bilitic ' j te b» perform o 4 t>y »»» individual 
employed »» a full timo »f part tim e basis; 
f^) Class. A sp e oiTic group ef posit i ons which 
af* so similar ift duties aft4 rosponGibilitioG 
that- Aey justify common treatment m se- 
lection, compensation a»4 other employ 
m e at proc e ss e s, afi4 the same doscriptivo 
k4«» may he used to designate ali positions 
» t4»t» class regardless »f th» agoncioo » 
■ ■ vhich they are located; 
(4^ Class Specification. A g e n e raliz ed de- 
soription ef Ae duties aft4 r e sponsibilities 
characteristic Bi positions svhich compris e a 
class; i* is fte4- intended te- doscribo aJi the 
duties Bre ach position i» the class httt rather 
t» ^ve a composite view »f the class se as 
te set it apart from other classes; 
(4^ Recruitment Standards. The standards 
neceosary fof recruiting aft employee te- fitt a 
position comprising: 
fa^ Knowledg e s. Skills aR4 iVbiliti e s. 4^ Fe- 
quirements »f employees fof successful 
vrork performance i» positions aUocatod 
t& a class writt e n ift terms f4 what afe Fe- 
quired ©f new e mployees at t4*e tim e ef 
employment »f promotion; 
{hj Nhnimum Education aR4 ["xperienco. A 
translation ei the Icnowledges, sliills aft4 
abilities iftte- quantifiable e duc . ation aft4 
e .xperience standards which ai=e the mini 
mum qualification requirements aft apph 
eaftt should possess at the tiuffte ef 
appointment; 

F'xpenence. A phra ' - i o t» indicate that, ift 
recruitment aft4 selection, reasonable 
substitutions »f forma] education aft4 es- 
p e rience, »fte fof the other, wdi be mad e 
»f that additional pertinent experience e* 
specialu'.ed education may he considered; 
f4f Special Requirements. Afty special h- 
censes Bf certificates needed by aft em- 
ployee te- perl'orm a gi^en johr f*f (my 

^T.V. ^^T^T.' H. Ill ( 



&f e motional stability) highlighted by de- 
mands ©fa position ift a class, where such 
conditions afe primary selection factors; 
(4) Position Claceification. j^ syst e matic stf- 
rangement ef positions tftt© classes accord 
ifig to the kift4 ©f work, levei ©f ditTiculty 
aft4 r e sponsibdity aft4 jeb r e quir e ments; 
f4) Benchmark. A Feai j©b having duties afi4 
responsibilities usually typical ©f a group ©f 
j©b* ift aft occupational oatogorv' deocnbed 
tft t e rms ©f factors which determine sfeU 
l e i i els. 

Statutory Authority G.S. J 26-4. 

.0304 POLICY ON ESTABLISHING MINIMUM 
QLALIFIC.\TION STANDARDS 

I f^l It .:- Wi ■ ■ 1 1 t-«J-i i\^n T-n-Y I 1 , ■ t I r^ f t t-» f^ c-f i-t* 1.-1 4 .-V n.- t .-i V.1 it- t-i 

job related minimum qualification standards 
wherever th e y afe practical fo* each class ©f i i vork 
ift the position classification plan. ¥he standards 
will- be based ©ft the required skills, knowledges 
aft4 abilities common to each classification. The 
qualification standards aft4 job related skills, 
knowledges aR4 abilitios shall sefve as guides fof 
the selection aft4 placement ©f indi' i iduals. 

fbf The education »f¥i e xperience statements 
serve as indicators ©f the possession ©f id e ntifi e d 
sldUs. kno' i vledg e s afi4 abilities aft4 as guid e s to 
primap i ' sources ©f r e cruitment; reasonable sub 
stitutions ©f form til education aft4 job related 
experience, ©fte fof the other, will be mad e . The 
State Personnel Commission recogniies that a 
specific quantity ©f formal e ducation ©f number 
©f y e ars experi e nc e does ft©t always guarantee 
poss e ssion ©f the id e ntified skills, Icnowlodges afid 
abilities fof evefy position » a class. Qualifica 
tions necessary to perform succ e ssfully fftay be 
attained « a ' ■ arioty ©f combinations. Manage 
ment is responsible fof determining specific j©b- 
related qualifications that afe aft addition to 
minimum standards; such qualifications must fe- 
ceiv e prior approval ©f the State P e rsonn e l ©i- 
rector. Management shall be responsible fof aftv 
adv e rs e effects r e sulting from the «se ©f iielection 
standards that have H©t been established ©f ap- 
p roved by the State Personnel Director. 

fe^ The State Personnel Director is authorized 
to modify education aftd expenence requirements 
fof e stablished classifications consistent wiih this 
policy af*d to r e port such changes to the board. 

Statutory' Authority G.S. 126-4. 

.0305 CL.\SSIFICATION METHOD 

AH positions afe defined by- the types iiPi<^ levels 
©f work imolved aftd evaluated based ©» the ap- 
phcation ©f accepted j©b analysis t e chniques aftd 



245 



NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



importonco ef A# prosonc e ©f aboonco ef &«efe 
j&fe factors » tiie poGitions. 

Statutory Authority G.S. 126-4. 

.0306 CLASSIFICATION PLAN 

Tke classification ptea fof local gO' .' Omm e nts i» 
North Carolina consists ef a syst e m fof identify 
m% aA typos aH4 lovols ef positions oubjoct te 
Chapt e r 4-34 ef tb# North Carolina Gonoral 
Statutes togothor witfe standards aB4 procoduroo 
fof maintaining tfee plan. 

Statutory Authority G.S. J 26-4. 

.0307 MAINTENANCE OF THE 
CLASSIFICATION PLAN 

Tbe Stat e Porsonnol Diroctor is roaponsiblo fof 
maintaining tbe classification plan fof cov e r e d 
local govommont positions. Nood fof olassifica 

OffiOQ ef Stat e Porsonnol may initiato studios ef 
singlo positions, occupational groups ef organ 
iaational groups ©f positions *©■ dotormino ti»t- 
the clasoifioations ase curr e nt. W^M e control »f 
tbe classification pfeft is rotainod by the Office »f 
Stato Porsonn e l, t4ie maintonanco »f the plan is 
the rosponoibility ©f osoryono concomod >s'ith 
porsonnol managomont. This includes individual 
omployooo, immediate supep i isors afi4 agoncy 
hoads. 

Statutory Authority G.S. 126-4. 

.0308 ALLOCATION OF POSITIONS TO 
CLASSIFICATION PLAN 

E\'ory covered position wt local government 
shall be aUocatod te- a» appropriate class » the 
classification plans. ¥he allocation ©f a position 
is its asoignmont t© a class containing ali posi 
tions ' I ' l 'hich afe ouffioiontly similar m duty as- 
signmonto t© justify common troatmont i» 
soloction, comp e nsation aft4 other employm e nt 

position ©f ©f many Wte positions. 

Statutory Authority G.S. 126-4. 

.0309 TENTATIVE AND FLAT-RATE 

PROVISIONS FOR TEMPORARY CLASS. 

The Stato Personnel Diroctor is authoriiiod t© 
e stablish tomporary classifications v4tb tentative 
pay grades ©f flat rate oalarios wheft insufficient 
informati eft is available t» malto pormcmont eias- 
sification aft4 pay rooommondations t© the Stato 
P e rsonnel Commission. WTion sulTioiont infor 
mation is avaUablo, the diroctor wiii mako a fe- 
commondation %» the Stato Porsonnol 



Commission ' ■ ■ ■ 'hich will incorporat e the t e mpo 
fafy efess aft4 pay iRte- the pormanont classifica 
tfoft plan aft4 pay plan. Such tomporary classes, 
tontati' . 'o pay grades aft4 flat rate salari e s shali be 
administ e r e d according te- all applicable rules afi4 
regulations approved by the Stat e Porsonnol 
Commission. 

Statutory Authority G.S. 126-4. 

.0310 NEW AND ADDITIONAL PERMANENT: 
FULL OR PART-TLME POSITIONS 

(a) ¥he duties ©f a budgotod position must be 
d e fm e d aftd t4%e position must be assigned te aft 
ofTicial claosifioation i» the salary plan. 

(fe) Form PD 1 18, ©f its oquivalont, shaU be 
submitt e d te the Office ©f State Personnel ^ 
days prior t» the proposed offoctivo date ©f the 
establishment ©f the aew position, tf the pro 
pos e d omployoQ fof the Hew position is Icnown, 
copi e s ©f Form PD 100 should accompany 
PD 118 (see 3^ NCAC \h Section A^i^ feries 
.440^ aftd . 1506). 

Statutory Authority G.S. 126-4. 

.0311 ALLOCATION OR REALLOCATION OF 
A VACANT POSITION 

fe order t© allocate ©f roallocato a position that 

ties ©f the position shall be rodoscribod by a 
Poffft PD 118 (see 3J^ NCAC \h Section t^^OOt 
Rule .1506), ©f its oquivalont, before it is filled. 

Statutory Authority G.S. 126-4. 

.0312 REALLOCATION OF AN ESTABLISHED 
POSITION TO ANOTHER CLASS. 

Pi.oallocation is the assignm e nt ©f a position 
from ©fte class t© another as the result ©f a 
change ift assign e d duties sis^ responsibiliti e s. 

Statutory Authority G.S. 126-4. 

.0313 EFFECTIVE DATE OF REALLOCATION 

XZ^,-,^ TiV\ 1 1 Q etc \±r- (^niiiiilfinl inH tht^ nrirn n n l 

T T?l III 1 L' I 1 '^ ' ) V^ 1 1 1 J t_'U Ul f UIV ^ ^ *■ < UI 11-1 TTTCT OTTC^mTTr 

copy ©f PD 103 should be submitted te the 0f- 
ftee ©f State Porsonnol ^ days prior te the pfe- 
posod e fFecti' i - e date ©f the reallocation te allow 
adequate time fof study stfii^ processing ©f the 
requ e sts (see 3J> NCAC \h Section A^ Rwles 
.1506 aft4 .1507). Pv^oquests received aftef thefest- 

/-loir -"tf 4l-» n J-v^ .~v n 4 1-t -n g-ii '~ * » V* « ^j-ij- t .-v t-n-v m H <! 1"^ nTTOl''1"1^ ''Pi 

fte earlier than the fo=st ©f the foUovving month 
aft4 eaft be effective only aft e r complete infor 
mation is available te malce a decision. If afty 
party is delayed ift carr y ing ©«t its rosponsibU 
itios, the employee should ftet be caused t© sef- 
fefr afi4 the effectiv e date wiU- be r e vis e d te the 



7:i NORTH CAROLINA REGISTER May I, 1992 



246 



PROPOSED RULES 



moot R'anonuble tfote consiritcnt with Ae timo 
Uwrt- complot e information would haso boon 
asailablo t& maJt e tiie docision eft t4t« reallocation 
ef A« poLiition. 

Statutory Authority G.S. 126-4. 

.0314 TRANSFER OF POSITIONS 

If aft er . tablif r h e d position is tranf i forrod botwoon 
di' . iL' . ionr . . unitfl, placos ef work, budeot oodoo e* 
iiubhL ' adii, Powft PD 1 18 f^i«t» 2J^ NCAC \h Se^ 
U++ft . 1 500, Rul e . 1506), ©f ite e quivalent, must 
be f . ubmittL ' d although thoro FHay b« Be ohangoo 
ift At* position Wte ef basic lev e l »f duti e s aft4 
responsibilities assigned te Ae position. A 
statomont should be included »» Ae form indi 
eating th e re i* ae- chang e ift Ae assigned duties 
aft4 r e sponsibilities »f Ae position. 

Statutory Authority G.S. 126-4. 

.0.^15 ABOLISHMENT OF A POSITION 

f*| A position (+»*■ » »» longer being used by 
a» agency »f fef which budgeted funds afe »»* 
available should be abohshed. 

(^ Nonnally Pefm PD 1 18 (^ee ^ NCAC 44t 
Section .1500. Rule . 1506), ©f ite equivalent, 
should be submitted to tbe OfTico »f State Pei^ 
soruiol ^ days prior te the proposed ofTootivo 
date ef the abolition ef the position. Other 

Qi^ljl^i^^ «-tT ■-» 1 f V-^ ft -^ i-T-T-^,-1 ,-| 1 1 «-» .-t j^ « j-> /-> •-\ c- i~i r- 1 I r k» ,-n-.-t Loj-riQ 
rTTCTTTTTTTTT rTTTTT^ L' V UCJT-'VTJ LI l ' \„' 1 1 1_1 1 \JkI .^J vj HI 1\J1 \J IKxA. EL,~ 

numbers ef positions afe t«- be abolished. 
Statutory' Authority G.S. 126-4. 

.0316 ABOLISHMENT OF A CLASS 

fa^ ¥he abolishment &f a class may be noo e s 
saf¥ a* a r e sult &fe 

f-H a classification study, 

(-Si reallocation ef atl positions » the class te- 

another class, 
f^ abolishment &f al4 positions m- the class. 
fbi Recommendation t& abolish a class shall 
be submitted te- the Stat e Personnel Commission 
ft+f appropnato action. 

Statutory Authority G.S. 126-4. 

SECTION .0400 - LOCAL GOVERNMENT 
POSITION CLASSIFICATION SERVICES 

.0401 CHARGES 



(ai Service chargoo w4y- be based upon the »*- 
t«fe ef the work r e quest e d, aft4 the anticipated 
salary, travel, lodging, subsistence, printing, aft4 
ov e rh e ad costs nocossary te- complet e the Fe- 
quostod work. Ae- individual proposal wiU be 
developed ift response te- each project request. 

fb) Transferable products d e veloped te meet a 
g e n e ral need, such as p e rsonn e l policy models, 
record system models, jefe evaluation models, 
eterr w4H- be offer e d at a foif mark e t pric e . 

f&) ¥he total funds received from all- sources 
through charges will Ret oKcood the actual opor 
ating costs ef the service program. 

Statutory Authority G.S. 126-10. 

.0402 MEMORANDLM OF AGREEMENT FOR 
TECHNICAL ASSISTANCE 

The memorandum ef agreement fef technical 
assistance is »» agreement signed by- the QfTico 
ef Stat e F^orsonn e l afi4 the local jurisdiction set- 
t«g etit the terms aft4 conditions under which 
the Office ef State Personnel agrees te supply 
t e chnical assistance ift position classification te 
the local jurisdiction. 

Statutory Authority G.S. 126-10. 

SECTION .0500 - POSITIONS IN LOCAL 
GOVERNMENT 



.0501 CL.\SSIFICATIONS 

The classifications » ti»& 



Section are those 
which afe used exclusively » local government 
positions cover e d by the State Personnel Aetr 

Statutory Authority G.S. 126-4. 

.0502 FILING OF CLASSIFICATION 
STANDARDS 

Complete classification standards afe filed ift the 
Office ef State Personnel aft4 feay be obtain e d 
upon request from Position Management Divi 
sion. Office ef State Personn e l. 

Statutory Authority G.S. 1508-/4(3). 

.0503 CLASSIFICATION STANDARDS 

The filed classification standards contain de- 

oducation r e quir e m e nts asd experience requir e 
ments. 

Statutory Authority G.S. 126-4. 



.0504 LEGAL: ADMINISTR.\T1\ E M.VNAGEMENT: AND RELATED CLASSES 

fai Business Management 



Classification Title 



Grade rver 



247 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



County Social Sonicos Busin e ss Offic e r i 
County Social Sonicos Businooc Offic e r ti 

(fe^ Gonoral Adminiotrati^^ e 

Claosification Titl e 



County Social 1 
Countv Social I 



Program Adnnjnistrator i 
Program Administrator H 



County Diroctor ef Social 1 
County Dir e ctor ef Social i 
County Dir e ctor ef Social \ 
Countv Diroctor ef Social Sor^^icos W- 




Countv Diroctor el Social Sorsic e s ¥■ 



Local Mental Health Contor Unit i 
Coordinator, Health Sop i 'ico 
AdminiotrativQ Assistant, Civil Proparodnoss 
Administrati' i e Officer, Civil Proparodnooc 
Assistant Director, Local Proparodnoss 
8ay Caro Director \ 

fe^ Personnel Managomont aB4 Training 
Classification Titl e 

County Social Sorvicos Training Officer 
Statutory Authority G.S. 126-4. 

.0505 DATA PROCESSING CLASSES 

Statistical 

Public Health Statistician 
Statutory Authority G.S. 126-4. 

.0506 INFORMATIONAL AND EDUCATIONAL CLASSES 

(a) Publicity afi4 Promotion 

ClaGsification Titlo 

Immunization Education Aide 

(^ Program Development, Promotion, aft4 Information Sonicos 

Classification Titl e 

i'Vroa Occupational Program Specialist 
Social Sotting D e toxiTioation Managor 
Substanco Abuso Education Supervisor 
Sub ' jtanco Abuse Education Consultant Trainee 
Substance Abuso Education Consuhant 
Substance Abuso Education Specialist Trainee 
Substanco Abuso Education Spociolist 
Substance Abuso Informat 4e» Center Diroctor 



?3 
74 



Grado Ner 

73 
?4 
73 
74 
74 
79 
^ 
7© 
7© 

M 
44 
44 



Grado Nor 
71- 



Grade Ner 



Grad e Ner 
54 

Grad e ■N^r 

47 

44 

47 

NG 

%^ 

NG 

4^ 

44 



7:3 NORTH CAROLINA REGISTER May 1,1992 



248 



PROPOSED RULES 



Sub ' - . tanc e Abu 'i c Dl ' I Sp e cialist J- 
Sub ;. tunc e Abu '. c ' Dl I Sp e cialist H 
Sub^itanco Abu j. e DUI SupoP i ioor 

fe) Occupational aB4 Adult Instruction aft4 Adminiotration 

Claf . c . ification Titlo 

Homo Economist Trainoo 
Homo Bconomist 



m 
a 
^ 



Grado Nor 






Statutory Authority G.S. 126-4. 

.0507 IlLMAN SERVICES CLASSES 

Social, Vocational ftft4 Corroctional Coun&oLing, Rehabilitation, aH4 Training 

Claooifioation Titlo 

©ay Caro Sop i' iooo Coordinator 1 

©ay Caro Sor i 'icoo Coordinator H 

Educational Dl ' s olopmantal Tochnician Trainoo 

Educational Dovolopmontal Tochnician 

Adult Do' i olopmontal ]\ctivitioa Program Coordinator Trainoo 

Adult Dovolopmt ' ntal Actisitiou Program Coordinator 

\\|'Qrk Adjustmont Coordinator Train ee 

W ' ^ork Adjustmont Coordinator 

Workshop Programming Supor i ^isor 

Workshop Dirootor itf 

Dovolopmontal ©ay T e achor J 

Do' i 'olopmontal f^r^ Teaohor H 

Do' i t'lopmontal ^a^ Diroctor I- 

Do' i oU'pmontal i^ii^ Diroctor -H- 

Dosolopmontal ©ay Dirootor Jm 

1 horapoutio Preschool Toachor 

Educational Program Coordinator 

Statutory Authority G.S. 126-4. 

.0508 MEDICAL: HEALTH: AND LABORATORY CLASSES 

(a^ Modical Laborator)" aftd Laboratory Son'icos 

Classification Titlo 

V e noroal Disoaso Epidomiologio iVssiotant 

ffet-)- Modical Supply aft4 Supportii ie Classoo 

Clac i sification Titl e 

D e ntal Assistant (Local Hetilth) 

(e^ Profossional M e dical 

Classification Title 

Podiatrio Consultant 

(4| Profossional Nursing 



m 

TO 



Grado r'i^r 
Grado Ne? 
Grado N^r 



249 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



ClaGsification Titl e 

Montal Hoalth Nurso Traino e 
Mental Hoalth Nurs e I 
Montal Health Nurso U 
Montal Hoalth Nurse Sup e rvisor 
Nurso Specialist Public Hoalth 

(e) Non profoosional Nursing, Counsolingt aH4 Personal Cor e 

Classification Title 

Community Social Sende e s Assistant 
Community Support SoP i ices Supendsor 
Community Support Sonicos Manager 
Community Mental Hoalth Aooistant 
Community M e ntal Hoalth Toohnioian 
Chor e Work e r SupoP i door 

Statutory Authority G.S. 126-4. 

.0509 LICENSING: INSPECTION: AND PUBLIC SAFETY CLASSES 

(a) Sanitation 

ClasGification Titl e 

Summ e r H e lp e r, Sanitation 
Environm e ntal Hoalth Sup e n i isor Ht 
Environm e ntal I loalth Coordinator 

(fe) Industrial aft4 Natural Ptosouroes 

Classification Titl e 

Aif I lygionist \ 

Aif Hygi e nist H 

Aif Hygi e nist Hi 

Diroctor ef Environmontal Hoalth t 

Diroctor ef Environmontal H e alth H 

Statutory Authority G.S. 126-4. 

.0510 SKILLED TRADES AND ALLIED CLASSES 

Technical aft4 SoiontiTic 

Classification Titlo 
Pt.adiologioal Instrument Spociahst 
Statutory Authority G.S. 126-4. 

.051 1 ENGINEERING: ARCHITECTURAL: AND ALLIED CLASSES 

Structural, Elootricol, aad Moohanical Enginooring 

Classification Titl e 
Sholtor Projoot Officor 



Grad e N^r 
54- 

7a 



Grad e Ner 



Grade Ner 

4» 
74 
6» 



Grade Ner 

47 
7a 
7* 
74 
78 



Grade rC^r 



Grade Ner 
64 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



250 



PROPOSED RULES 



Statutory Authority G.S. J 26-4. 



SECTION .0600 - RECKIHMKNT AND 
SELECTION 

.0601 KECRLITMENT 

(*)• I'dlioy. I ocal J e partmt ' ntf . aft4 agcmci e s 
wtH- m ee t th e ir V r orkforoo noodi t through Gyotom 
at+6 roLTuitment *b4 cart'or support progrumo 
V i hich idt ' otify, attract, c . ijlaot, »ft4 dev e lop tbe 
human r e ^iourc e s nococsarr fo* pr e-i ent aft4 futur e 
work. 

(4*) fte e mploym e nt ef indi' i iduals wtH ^ 
carried e«4- with forL'lhought fof the balance ef 
iikills noodod te- c . uotain grov i lh aft4 assur e future 
loadorohip. Programs im4 practiooo which fost e r 
internal advancement opportunitiec . fof current 
emplovL'L ' L . w+tt W e arn e stly attL'nded. fe* t e nur e 
aft4 experience i^ te- bt> ' ■ alued. A4- A« same tim e . 
ther e w+il- b«* a plann e d »fi4 r e asoned infusion ef 
persons from outside tfee organiiuition, who eaft 
offer scarce talent, » frt ' ^ i h perspective. »f t^ krt- 
e^ acad e mic knowl e dg e . Ihis v414 bt^ acoom 
plished through targ e t e d recruitment efforts 
which feeaf a logical aft4 systematic relationship 
te- Ae desired ' ■ ' i orklorce representation. aft4 af- 
fof4 equal appUcant opportunity within y+» lifH- 
ite ef th e s e goals. Through such a purposeful 
integration eJ e .xperi e nc e , perspectiv e . aft4 vital 
iPfr t^ mission ef senice te- t4*e public wiii be 

Statutory^ Authority G.S. 126-4. 

.0602 POSTING AND ANNOUNCEMENT OF 
VAC.\NCIES 

fa^ Vacant positions te be fdled wtli be publi 
cized by t4*e ag e ncy hai i uig t4+e vacancy te- permit 
a» open opportunity fof all interested employooo 
ss¥^ applicants te apply. 

fb^ Vacancies which ¥41i be fdled from witliin 
Ae agency' worldorce wtii be prominently posted 
m aft afea knov . n to employees. afi4 Vrtii be 4e- 
scnbed « aft announcement vshich includes at- 
minimum tbe Wier salary range, key duties, 
knowledge »ft4 skitt r e quirem e nts, minimum ed- 
ucation aft4 expenence standard. aft4 contact 
pepjon ft+f e ach position to be filled. Aft excep 
t4eft te tbi^ postmg requirement wtii be permis 
sibl e where a formal, pre existing "understudy" 
arrang e ment ba* been established by manage 
ment. 

fef Any vacancy fe»f which aft agency wishes te- 
consider outsid e applicants ef outside applicants 
concurrently v . ith the int e rnal vrorkforc e shall be 
listed wrtfe tbe local :fob Service Office »f tbe 
I'lnplovment Security Commi '. sion. I istings wiij- 
include tbe appropriate announcement informa 



tieft aft4 vacancios se listed shall have a» appli 
cation period si Hot- les* than f«ven work days. 
(4f tf aft ag e ncy mak e s a» e ffort te ffl a va- 

witb the Imploymont Security Commission 
would take place when tbe decision is mad e te- 
recruit outside. A vacancy which a» ag e ncy wiJi 
n»t fili fof aftv reason should net- be listed; if 
conditions chang e , it- should tbeft be treated as a 
ftew vacancy. 

Statutory Authority G.S. 126-4. 

.0603 APPLICANT INF0R\I.\T10N AND 
APPLICATION 

fa4 -fte primar;r sourc e ei pubhc information 
aft4 referral fof vaoancios i» subject local gov 
emment programs is tbe Employm e nt Security 
Commission. Interested persons may contact 
their local LiSC .-fob Service Office. Oth e r 
sourc e s mav ' ake- be d e signat e d by local depart 
monts aft4 agencies. 

fb) Persons applying fof a local vacancy must 

CLIliiLM^. V\J rrTTTT 3TTTTTTTTT L I IkJ TTTTTTCTTTr CTT»TTTTCTTTTTTTT r^TTTTT 

designated by tbe hiring authority sis^ approved 

fe* local agencies te acc e pt official application 
forms i» tbe absence ef aft actual vacancy under 
activ e r e cruitm e nt. 

fG^ Fach agency shall be r e sponsibl e fof e valu 
ating tbe accuracy »f stat e ments mad e i» aft ap- 
plication. aft4 mav seek job related evidence »f 
tbe applicant's suitability fof employment. 
(4^ Aft apphcant may be disquaJilied \i bef 
f4-^ lacks MVf ef tbe preliminary qualifications 
established fof tbe class ef tbe position 
being apph e d foft 
f2^ b** been ccmvict e d »f a crim e »f a natur e 
which would raise serious public doubt 
about suitability fof tbe responsibilities ©f 
tbe specific position being apph e d fofr 
(4-^ baft made a fals e statement ef material feet 

ift tbe application process; 
f4| us e d ef attempted to tt^e political pressur e 
Bf bnbePr t»- secure a« advantage » tbe 
selection process; 
(4-} foik te- submit a» application correctly ©f 

within tbe prescrib e d time limits; 
(4} baft directly m- indir e ctly obtained infor 
mation concerning nfVy- requir e d selection 
procedure t»- which aft apphcant fs Het 
entitled; 
(4) lacks the physical ef mental ability te- 
perfonn tbe e '. sential duties of tbe position 
oven with reasonable accommodation; 



251 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



(^ holds a» oflice »f has othor omploymont 
which would conotituto » conflict ef ift- 
tt ' ro ' jt with the public rosponoibility vest e d 

1 n ill rT, rt /~\ >:• I -t t /-i r-k t-ni. f^ jt j- .-\ » i nV^* 
111 riI\T pTTTTTTT^TTT Ty^TTT^Z <J\J \S iLyl 1 1 . 

Statutory Authority G.S. 126-4. 

.0604 EMPLOYMENT OF RELATIVES 

fa} ¥he omploymont ef rolativos within th# 

CJUl HP ITTtrtI LlUL'lU 111 iPt II LTI U C"' '^ T "^ t^T ^^? tTT t./HJV^J 

unloc p Q significant recruitm e nt difliculties oxiot. U 
the omploymont ef rolativos must he conaidorod, 
the following wili apply: Two momboro ef aft 
immodiat e family shall ft»t he employ e d within 
the oamo dopartmont ©f agency if such employ 
m e nt w41J result ift efte oupor . fisLng a mombor &f 
his/hor immodiato family, ef whore »fte memb e r 
occupios a position which has influonco over the 
other's omploymont, promotion, aalar>f adminis 
tration, aft4 othor related managem e nt ef pef- 
sonnol conoidorationo. 

(h) The term "immodiato family" shalf he wo- 
dorstood t» refer te that degr ee ef clooonoso ef 
relationship which would sugg e st that probloms 

public's philosophy »f faif play i» pro' i iding 
equal opportunity fe* e mploym e nt t& att quali 
6e4 individuals would he violat e d, ht gonoral, 
this would include wife, husbtmd, mother, father, 
brother, sist e r, sofir daught e r, grandmoth e r, 
grandfather, grandson, granddaughter. i\loo is- 
oluded afe the stop , half , aft4 in la' i ' i ' relation 
ships as appropriat e basod e«- the listing m this 
Rule, h- might alse- include others Using svithin 
the same household ©f othop . viso se clos e ly 
idontifiod with e ach other as te suggest difTiculty. 

Statutory Authority G.S. 126-4. 

.0605 VETERAN'S PREFERENCE 

Persons entitled te i i Otoran's pr e f e r e nc e must se 
indicate eft any application fil e d. V e rifying doc 
umentation Htay he r e quired hy the agency if s» 
d e sired. 

Statutory Authority G.S. 126-4(10); 128-5. 

.0606 SELECTION 

(a} Selection ef Applicants 
f44 -fte selection ©f applicants ftw appoint 
m e nt wtH- he based upon a r e lativ e con 
l idoration ef their qualifications fof the 
position te- he fdled. iXd' i antugo w4h he 
given t» applicants dotormined t» he best 
qualified »ft4 hiring authorities must fea- 
sonably document hiring deci s ions t» vet^ 
tfy this advantage was granted aft4 oxplain 
their basis fof selection. 



^ 



^ 

w 



(3) Selection procedur e s aft4 methods w4U he 
s'alidly related te- the duties aft4 r e sponsi 
biliti e s ef the vacancy to he fill e d, fe afty 
s'acanoy instance, the same selection 
process wih he used consistently with bA 
applicants. Equal e mploym e nt consider 
ation wth he afforded. Referenc e checldng 
aft4 othor means ef ' ■ 'orifying applicant 
qualifications FBay he employed as n e c e s 
sar)'. it should he rocogniiiod aft4 e«- 
plained te persons sel e ct e d that the 
probationaP ) ^ period is a r e quired e xt e n 
si©» 9i the selection process. 
The Offico »f Stat e P e rsonn e l wili provide 
technical assistance, upon r e quest, te- 
agenci e s wishing te- design Bf- r e vi e w se- 
loction procedures. 
Minimum Qualifications 
The employee ef applicant must possess 
at l e ast the minimum education aad e*- 
p e rienc e requirements, e* their equivalent, 
set forth ift the state class specification f&F 
the claos »f the position te- he fdlod. This 
shall apply ift ftew appointments, pf©- 
motions, demotions, tr;msf e rs, afi4 rein 
statem e nts. 

(3) The education aft4 exp e ri e nc e require 
ments seno as indicators &f the possession 
ef the oldlls, Icnowlodg e s, aft4 abilities 
' . ' ■ 'hich have be e n show - n through jeh 
evaluation te- he important te successful 
performanc e , e^Pi^ as a guid e te pnmaiy 
sources ef rocruilmont. it is rocogniaed 
that a specific quantity ef formal oduca 
tie» er number ef y e ars oxporionco does 
fiet always guarantee poss e ssion ef the 
nec e ssap ;- skill i. , knowledges, afi4 abilities 
f&f ev e ry position. Qualifications necos 
saiy te p e rform succo '. sfully may he at- 
tainod ie a vari e ty ef combinations, h* 
ovaluating qualification !. , reasonabl e sub 
stitutions ef formal education aft4 jeh- 
related experience, eee fof the other, wih 
he mad e upon recju e st hy the local ap- 

ro' i 'iow agency. 

(^ .Management is respon ' iible fef detennin 
ieg the ' l acancy i. pecifio qualifications that 
afe aft addition te minimum class stand 
ards. Such qualification requirements 
must heap a logical aft4 job related fe- 
lationship te the minimum standard. 
Management shall he accountable fef the 
advers e effects roinilting from the Hse ef 
qualification standards that afe unreason 
ahly construed. 

f4^ The ros'ieW ' authority fef qualifications ift 
questionable selection situations r e sts hfst 



7:i NORTH CAROLINA REGISTER May I, 1992 



252 



PROPOSED RULES 



with Ae rocpoctii i o r e gional poroonnol b^ 
fiee »f the Dopartmont ef Human R«- 

1- ."^ 1 > T- /-- ■-I f H J-t j-j t^T^ 1- < t t f 1 I It Tl /'.-l /-vt- I 1 «Trt r ^»-»-».- l--» <-.! r 

Munagomont, aft4 finally with the Qffico 
e4 StatQ I'sroonn e l. 

Statutory Authority G.S. 126-4. 

SECTION .0700 - APPOINTMENT AND 
SEPARATION 

.0701 APPOINTMENT 

Aft appointment is 4w approv e d omploymont 

\~j I UJ 1 U. I ' L' 1 1 \^ U.1 1 1 V-fl <- 1 1 1 V-' H-f ~ \^J ITT f,^-- 1 IT^TTTT tT^^ HUT W-TJ 

afi4 ruL ' ponL' . ibilitioa ef a» e stablished position 
Gubjoot to tbe provisions ef the Stato Porsonnel 
Aetr 4^ oolootion aft4 appointm e nt »f poroons 
te ali subjoct positions s hall be hf the action »f 
the appointing authority. 

Statutory Authority G.S. 126-4. 

.0702 TYPES OF APPOINTMENTS AND 
DERATION 

f*} Probationary Appoinlmont 

(4^ Individuals r(.H. 'e iving original appoint 
ments t» pemianL ' nt positions must s e p i ' e 
» probationary poriod. Poroons boing Fe- 
hirc'd aftef leaving omploymont i» a sub 
jee+ position, aR4 omployuus voluntarily 
accepting promotions, trancfors, »f 4e- 
niotiono ts another county, afea montal 
health substanc e abus e program, district 
health program, ep omorgonoy manage 
ment program, may he required te serse 
» probationary period hy their aew e+H- 
ployers. This period i* s» essential e^t- 
t e nsion ©f the selection prococo, aft4 
presides the time fof effective adjustment 
hy the ftew omployeo »* elimination ef 
those whose performance vriU- net moot 
acceptablo standards. 

f5^ fte length ef the probationary period 

.- l-i ■ 1 I 1 V-».-i r\ r-ii I j-i .-■ .-- 4 Vi -T j-i ♦ V> J- ."t . 1 n.-\r- r-ri j-> »-j-i f Vi --i j-t 
rTTTtTTT fV rTTTT 1 1--' J J 111 \Xl I 1 1 U l^^^ 1 H_l I 1 ilV^l \J 1 1 iUJT 

Hifte months »f either full time ef part 
t«fte employment, fte l e ngth i« depend 
eftt upon the complexity ef the position 
aft4 the rapidity e4 progress mad e hy the 
particular individual ift the position. 
\Mien the employee's p e rformanc e moots 
the required standard »f work, after at 

rVTTTT 1 1 Li \. \- m^TTTTTT^ COT^T r^^TT rT^TTT^T I IIT.U I 
TT 1 »-i . 1 TTi ."1 n f 1-1 ^' « T-i t 1-1 .-\ y-t. -t .- ■ 4 < j-i r-i ♦ l-t i-« i-tm »->l . -> » - ,1 ^ 

nil n. riiTTiTTi t5 ttt iric r^r^TTTTTTTT m^ Pini'iT ' t w 

shall he save» pemianent status unless ift 
a trainee appomtment. tf the desired level 
»f performimco is net- achieved vvithm 
HJfie months after uiitial appomtm e nt, the 
e mployee shall he separated from s e nic e 
unless » trainee status; a» omployeo with 



a trainee appointm e nt is aet expected to 
r e ach a Mtisfactory perform anco standard 
fe* the regular class until he has com 
pletod the training poriod. 

f^ At afty ttme during a probationary p e riod 
aft employ ee H»y he separated from sef- 
viee fof cauoos r e lat e d to p e rformance ©f 
duti e s Of fof porsonal conduct d e trimental 
to the agency without right of appeal of 
hearing. ¥he omployeo must he given 
notic e of dismissal, including reasons. 

(4^ Satisfactory B e rv ' ic e during a probationary^, 
temporary ' , Of trainee appointment may 
constitut e part of aH of the probationary 
period. Employment ift aft int e rmitt e nt 
&f omorgonoy appointm e nt shaU aot he 
credited toward the probationary poriod. 
fh^ 1 rainee Appointment 

f4-^ A trainoo appointment may he made to a 
po ' . . ition ift afty class fof which the spec 
ification inoludos special provisions f&f a 
train ee progression l e ading to a regular 
appointment. Aft individual may set he 
appointed as a trainee if he possesses the 
acceptable training aft4 experience fe* the 
class. 

f^ The specification fof e ach class ift which 
a trainee appointment is authorii'.ed wiii 
detino the mmimum qualifications fof the 
trainee appointment m¥^ the minimum 
qualifications fof a r e gular probationary 
appointm e nt, it isr of cours e , e xpect e d 
that the individual wih progress through 
supervised experience to a minimum level 

during a p e riod of tim e indicated hy the 
ditTer e nce betwe e n the amounts of exp e ri 
eftee required fof the two typos of ap- 
pomtments. This limit does ftot include 
tim e sp e nt oft e ducational l e av e of addi 
tional time requir e d to participat e h* a 
wcirlc study program designed to meet ed- 
ucational ruquiromunts fe* the class. Aft 
e mployee may ftot r e main o» a tramoe 
appointm e nt beyond the time he meets 
the educational sm^ expenenc e require 
meats fef the class. Aft e r the employee 
has succ e ssfully completed alf educational 
aft4 experience requirements he shall he 
given probationary »f permanent status ift 
the position ©f shall he separated, if the 
period of the train ee appointment equals 
Of exceeds nin e months, the employe e 
must he given pennanont status imme 
diately of he separated. 
(4^ if aft employe e with permanent status i» 
another class accepts a train ee appoint 
mont, the permanent status w4h he waived 



253 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



fof Ae duration »f tfee tminoo appoint 
mont. B» omployoo ettft regain poima 
nent otatuo oithor through ouooossFul 
oomplotion ef the trainoe appointm e nt, 
hf roinc i tatomont te A» class in- which he 
previously heW status, Bf by transf e r to » 

tTTTDTTTTTTT tiT Ct t.'IU5^ fTTT H I lHJll 1 lU/ DllU ** *_> LllU 

havQ been eligibl e baood »» pr e vious pef- 
manont status. 

minimum roquiromonts ef the class to 

tTllilTIT lie tW LiUllIL U.L' LIVJ LlllUVJ L^nXlI IHJ ^^ ' VFT 

a trainoo appointm e nt. AU roquiromonts 

fof tbe trainoo appointm e nt must be s*rt- 

isfiod prior to attaining permanent status. 

(e) Perman e nt Appointment. A perman e nt 

appointment its a» appointment toa permanontly 

ostablichod position ' . ' ■ 'h e n tbe incumbent i* mr- 

poctod to be retained »ft a permanent basis. 

Permanent appointm e nts foUo' . v the satisfactory 

completion ei a probationary and ' Or trainoo ap- 

pointmont, Bf may be mad e upon reinstatement 

»f a quaJifiod omployoo. 

fd^ Time Limited Appointment. A time 
limited appointm e nt 9Pietf be made to^ 

(44 a p e rman e nt position that- ht vacant dtte to 
the incumbent's leave ef absence aft4 
' . ' ■ 'h e n the replacement employee's sonicos 
wiA be needed fof a period ef eee year ©f 

f3) to a permanent postion that has aa e stab 
lishod duration »f He- more than twe 
years. Such appointment shall Hot be 
made fo* less than si* months. U at the 
Wi4 ©f the twe yeaf time limit e d appoint 
ment, the i i vork is expected to continu e 
aft4 tfee position b e comes p e rmanent, the 
e mploy ee should be given a p e rman e nt 
appointment. A time limited appoint 
m e nt is distinguished from a temporary 
appointment by the greater length ef time, 
aft4 from the r e gulLj permanent appoint 
ment by its limited duration. 
(e) Tomporap , ' iXppointment. A temporary 
appointment Fftay be made to a pennanent ef 
temporary position. 44ie appointment shall be 
hmitod to a maximum duration »f tvvolvo 

(^ Pre Vocational Student Appointment. This 
appointment is to be used to e nable students to 
gaift practical kno' . vlodgo ©f their particular ee- 
cupational afea ef interest. A suitable pteft- fof 
training und e r close supep i 'ision must be devel- 
oped fof the individual. i«- the ease ©f a e©- 
oporati' ^ o, ' . vork study, internship, ©f similar 
appointment, the tim e schedule fof i i vork must 
be detonninod. The basis ©f eligibility aft4 se- 

l(>pt I C\ r\ Tr-n- .-11 ."■ \~, ■ » r-v fj t~t.r^j-\ m t t-it . i»-i t . li ■ l I I l^."i . ai ij !■ .-» .-i. I 
rvT^TTmrTT 1^' 1 J'JVl I (.11 1 cTT'TTTTTTTTTTT^TTT TTTnTT L'V I,' 1.1 1 111 IVTT 



ift a formal plan doi ^ olopod by the participating 
agencies fof oach typo afi4 level of student ifi- 
volv e m e nt. A copy ©f the plan must be submit 
te4 fo* approval by the State P e rsonn e l Dir e ctor, 
©f his dosignoo. Upon sucoossful completion ©f 
theif training, indi' ^ 'iduals ms^ be consid e r e d fof 
aey vacant position f©f ' .'■ 'hich qualified. Work 
time opont » a pro vocational studont appoint 
m e nt may^ be count e d toward the required 
probationary period. 
(g) Emergency Appointment 
(+) Aft omorgonoy appointment may be mado 
' ■ vhon aft emergency situation exists re- 
quiring the oor^'ic e s ©f aft e mploy ee before 
it is possibl e to identify a qualified appli 

CCTTTT 11 U U U tJT lilU 1 V-'tV-HTJJ tTCT^TCXTTTTT I.' I l_rV\JVJ^Tr 

\\^on it is dotorminod that aft emergency 
appointment is nocossary, aii other Fe- 
quiromento f©f appointment w^ be 
' ■ vaiv e d. 
f3^ Aft emerg e ncy appointm e nt may be mad e 

(consecutiv e ©f non cons e cutiv e ). Aft m- 
dividual may ftot receiv e successi' ie e m e r 
gency appointments ' ■ ' ■ 'ith the samo 
dopajtm e nt ©f agency. At l e ast thr ee eat- 
e ndar months must e laps e b e for e that de- 
partment ©f agency eaft ^ve the sam e 
indii ^ idual another emerg e ncy appoint 
m e nt. 
(h) Appointm e nt ©f Incumbents ift No' . vly 
Cover e d Programs 

(4^ Upon extension ©f Stat e Personnel Aet 
roquiremonto to a progrtmi, position, ©f 
group ©f positions, the incumbent(s) may 
be appoint e d ' . vith permanent status ift his 
classification under afty ©f the foUo' . ving 
circumstances: 
(A)- The employee is qualifi e d f©f roin 
statem e nt ©ft the basis ©f previous pef- 
manent status ift a comparabl e position; 
©f 

©f satisfactory service ift the 
program agency, as certified by the ap- 
pointing authority, ^mi^ the appointing 
authority recommends that the omployoo 
be granted permanent status. 
(^ If the agency fails to grant permanent sta- 
tes ' ■ vithin nino months from t4*e uiitial 
coverag e then tbe incumb e nt must be hif- 
minat e d. Fimployeoo giv e n trainee ap- 

<-t j-i -t T-i t m /-iTT-t f 1 T n 1 1 !-*/-> 1^-1 1 r /-»«-! r^.-^wrt-i o «-n > n t ft '1 1 1 1 f 
t^TTH 1 1 i 1 1 VT r T. U TTTTT L'f Z^l I I. 1 1 yTTTTTTTTTTCTTr rTTTTTTTT 

consistent ' ■ ' ■ ith other trainee appoint 
ments. 
(^ Incumbents who have less thaft thr ee 
months ©f^ ser^'ic e "witb the agency shaU 
be continued "wth- ho status until they are 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



254 



PROPOSED RULES 



grantt ' d ponnanont i. tatus »f tcrminatod 
a^ roquir e d tft tfe» Rulo. I-mployL ' L"3 V i ith 

1 1 IT_' I l^' 1 1 lUl I 1. 1 1 1 yjK,' mTTTTTTTTT TTTTT I V ~~J mTTTT I 111 fV 

month ' j T .e nic e h* A« ag e ncy may- be 
conlinuod without '. talus until nin e 
month ' j havL ' olap '. od. At- Uw eft4 ©4 nin e 
month i i, ho' t vo' i for. tfee Lncumbunt must be 
CTanted pormanL'nt otatuo ef toiminated. 
f+> Work i\L;ain ' jt Appointment. Wlion quail 
6e4 applicant ', are unavailable. »ft4 th e r e » »» 
trainee provision fof tbe cla i. r i ifioation »f tbe va- 
cancy, tbe appointing authority may appoint aft 
employ ee b e low tbe level »f tbe regular claL . si 
fication » a ' i sork against situation. A work 
again ' jt appointm e nt i* fof tbe purpose &f 
allov i ing tbe employ e e te aaift tbe qualiricationo 
needed fof tbe foli olaoo through on th e job e*- 
perienc e . The appointee must moot ^be mini 
mum education aft4 experi e nc e standard &f tbe 
cla! . B to vshich initially appointed. A ' ■ s'ork 
again '. t appointment may fte4- be mado vshon ap- 
plioanto afe available wbe meet tbe education 
aft4 exporienco requirements fof tbe foil class, 
a»4 fof tbe position wt question. 

Statuloiy Authority G.S. 126-4. 

.0703 TR.WSFER: PROMOTION: 

DEMOTION: AND SEP.\R.\TION 

D e cisions r e lating to transfers, promotions, 4e- 
motions. separations, salapr" advancements, afi4 
other por '. onnel actions atTecting employees 
sh(Hild be based w* tbe overall performance aft4 
pot e ntial e4 tbe employee, bvaluation shall be 
systematic aft4 objective. a«4 guidanc e shaU be 
provided fw development Bi tbe employe e as as 
individual. CtYorts should be devoted to kft- 
proving tbe eifectivenoss e+ employees, assessing 
training needs, aft4 planning traming opportu 
niti e s. 

Statutory Authority G.S. 126-4. 

.0704 TR.VNSFER 

A transfer » Ae mov e ment e4^ a» employee 
from »fte position to another position i» Ae 
same class t*f between class e s having comparabl e 
qualitlcation rec;uirements (+f tbe same salar r ' 
grade. 

¥be transfer »f aft¥ probationaP i ef trainee effi- 
ployee may be made to other positions af tbe 
same level. Aft e r completion t4' tbe fif^ three 
months ef satisfactory ' service, aft employee » 
probationary' e* trainee status H*ay be translerred 
to afiy position to which be could be trani . ferred 
if be vv'er e a pennanent employee. 

Statutoiy Authority G.S. 126-4. 



.0705 PROMOTION 

fa^ A promotion vs a change to a classification 
at- a higher lev-el. This wi^ r e sult from move 
ment to another position ef by tbe pres e nt posi 
tieft being reallocated to a higher classification 
a* a result ef incr e as e s » tbe level ef duties aft4 
responsibilities. 

fb4 ^^ hen it- » feasible, a vacancy should be 
filled by promotion ef a qualified permanent 
employ e e. Solootion should be basod upon 
demonstrated capacity, aft4 quality ef service, tf 
promotion results from mov e ment to another 
position, tbe candidate must possess tbe mini 
mum training aft4 e.xperience fef tbe class. If tbe 
promotion results from tbe present position be- 
iftg reallocated to a higher classification, tbe ee*- 
ployeo may be promoted by waiver ef tbe stated 
education aft4 experience requirements if be bas 
satisfactorily performed fef a minimum ef throe 
months prior to tbe reallocation. 

fe)- Aft employee ift a work against appoint 
ment cannot be promoted, upon reallocation ef 
b+ti position, by waiver ef education aft4 oxpori 
once requirements untU be bas sened at- least efte 
yeaf i» tbe work against class ef until qualified 
fef tbe ftew- class. Tbe incumbent ift a work 
against situation must be promoted as soon as 
be meets tbe qualilications fef tbe higlier class 
ef tbe position must be reallocated to tbe lower 

fd4 ff tbe employee i» a position which is r e al 
located to a liigher classification bas pennanent 
status. aft4 is ft€>t- promoted, be shall receive tbe 
same consideration as is given aft employe e ift a 
reduction in forc e . 

(-e-^ Aft employee ift probationaPf ef trainee 
status may be promoted to another position ift a 
high e r classification if tbe p e rson i* qualifi e d fef 
such aft appointment. if4*e employee's 

probationary period will continue until pertbmi 
anco meets tbe rec}uirod standard, as certified by 
tbe appointing authority, except tbat ift fte ease 
shall tbe duration be longer than nine months 
after initial probationapy appointment (unless tbe 
person ts ift trainee statu i. ). 

ff} Aft employee ift probationary ' status occu 
pying a position at tbe time k- >s reallocated ep- 
ward may be promot e d to tbe ftew class if tbe 
p e rson possesses tbe minimum qualification aft4 
e xperi e nc e requirements . ; tf set qualifi e d tbe efft- 
plovee shall remain at tbe form e r lev e l working 
against tbe higlier class . ification ef be separated. 
if promot e d during tbe probationarV '- period. ti*e 
emplovee wall continue h* probationarv status 
until pertonnance moots tbe required standard, 
b«t- ift He ease shall ti*e duration be lonuer than 



2.->:) 



7:3 NORTH CAROLIN.A REGISTER May I, 1992 



PROPOSED RULES 



ftifte months aftef initial probationary appoint 
mont (unloos tbe poroon ie m trainoo status). 

Statutory Authority G.S. 126-4. 

.0706 DEMOTION/REASSIGNMENT 

Domotion Bf roaooignmont is a chango ift status 
rofiulting from aosignmunt &f a position to a lowor 

L'lU.tl!.'illdJ. tll^lT H?TT?1 '. Tt IIIUT 1 OULllL rTTTTTT 11 IW UlIUHJV 

&f tfe© omployoo, roaUocation »f a position, iftel- 
ficionoy ift porformanc e , unacooptabl e conduct, 
reduction in force, e* b e tt e r utilization ef indi 
vidual roGourcos. U the chang e results from ift- 
ofTicioncy ift porformance ef as a disciplinary^ 
action, Ae action is considered a domotion. If 
tfee change r e sults from a mutually agrood upon 
arrangomont, tbe action is considered a roasoign 
m e nt. \\Tien a» omployoe ift perman e nt, 
probationapy, e* trainoe status is demot e d, it is 
oxpoctod Aa* be wiU- poss e ss t4*e minimum qua] 
ifications required f»f tJw how- class at th» Fe- 
Gpocti' i ' e l e v e l ef appointment. 

Statutory Authority G.S. 126-4. 

.0707 SEP.AR.ATION 

tbe payroll fof reasons indicated ift A*s Rul e &f 
becaus e ej d e ath. Employees who have acquir e d 
permanent status wi4i net be subj e ct te involun 
tajy separation e* suspension except fof cauoo ©f 
reduction in force. 

f4-^ Resignation &f R e tir e ment. Aft employee 

1 1 ILi T I L. 1 11 1_Li 1 LI. L ^J TTTTJ .J\Jl f Hi,'\_'J T1 1111 11 l^J CI C,^JI TV J 

by- submitting a r e signation e* request fof 
retirement t» the appointing authority. 
it is e xpect e d that aft e mploy ee wiit ^ve 
at l e ast two weeks' notic e prior to- his last 
day &f work. 
Dismissal. Dismissal is involuntary sopa 



(^ 



f^ 



ration fof caus e , aft4 shall be mad e ift ae- 

©ft Suspension and Dismissal. (See 3^ 
NCAC -14t Section .1300.) 

Reduction in Force. fw reasons ©f 
curtailment ©f work, roorganu'.ation, ©f 
laelr ©f funds the appointing authority 
H»¥ s e parat e employees. Retention ©f 
employees ift classes aff e c - t e d shall be 
bas e d ©» syst e matic consideration ©f type 
©f appointment, l e ngth ©f s e nic e , af»4 
r e lative efficiency. >r© permanent efH- 
ployoo shall be separated while there afe 
emergency, int e rmittent. temporary^ 
probationary, ©f trainoo omployeos tft 
their initial s«t months ©f the trainee 
progression soning h* the same ©f related 
class, unless tbe p e nnanent employe e is 



ftot willing te transfer t© the position bel4 
by- thte non permanent omployoo, ©f the 
perman e nt employ ee does net have the 
IcnowlodgQ aft4 slolls required t© perform 
the work ©f the alt e rnat e position i i vithin 
a reasonabl e period ©f orientation aft4 
training given afiy- aew employee. 
fb) Aft omployo e ift tomporarys probationary, 
©f traine e status who is separated ift accordance 
w4tfe these provisions may- retain his status fof 
©Re yeaf from the date ©f separation, tf suitabl e 
employm e nt becomes a^^ailablo during the pe- 
riod, the employee H*ay be reinstated at tfee re- 
quest ©f tlite agoncy. 

fe^ A permanent omployoe wb© resigned ift 
good standing ©f was separated by reduction in 
forc e fsay- be reinstated at afty time ift the future 
that suitabl e employm e nt booomoo available. 
¥he employer may choos e t© offer employment 
witfe a probationary appointm e nt. fte ©h*- 
ployoe must moot tiie current minimum e duoa 
t4©ft aft4 experienc e standard fof the class t© 
which he is boing appointed. 

Statutory Authority G.S. 126-4. 

.0708 VETERANS 

Permanent ©f probationapy employees wh© fe- 

ift the Armed Forces ©f the United States, afe 
eligible f©f reinstatement t© the s^un e position ©f 
©fte ©f like status, seniority, an4 pay^- The efH- 
ployee may rec e iv e any salary incroasos which 
he she might hav e receiv e d ha4 he she remained 
ift his h e r position, subject t© the availability ©f 
funds aft4 the Limit placed by the maximum ©f 
the assigned salary range, tfr during militarv' sef- 
' l ice, aft employ ee is disabled t© the extent tbat 
ho 'she cannot perform the duties ©f his her ©fi- 
ginal position, he/sh e shall be reinstated t© a p©- 
sition with duti e s commensurat e with the 
disability, if afty such position is avadablo. 

Statutory Authority G.S. 126-4. 

SECTION .1000 - COMPENS.VriON 

.1001 COMPENSATION PLAN 

The compensation plan shall include a schedul e 
©f salary ranges aft4 rules f©f salary adminis 
tration. Within basic policies aft4 rules ostab 
lishod by- the Stat e Personnel Commission, local 
jurisdictions H»y- establish aft4 administer com 
penMtion plans which provide a level ©f pay- 
bas e d upon fmancial ability, Fiscal pohcy, aft4 
local prevailin g rates. 

Statutory Authority G.S. 126-4. 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



256 



PROPOSED RULES 



.1002 ESTABLISHMENT OF SALARY 
SCHEDULE 

f&^ Local jurisdictions »»¥ establish afl4 a4- 
ministor salar y' flchoduloo ' ■ ' ■ hich moot basic ap- 
proval roquiromsnts ef Ai* Stato P e rsonn e l 
Commission ae follows: 

f44 44w schL ' duk ' mu '. t consist &f sorios &f saj- 

intgrmodiato rates &f payt 
(4^ Th e r e must ^ a ' l ertical increase bL'twoen 
consocutivo salary ranges within th<* 
sch e dul e . 
(44 -fi*^ Stato Porsonnol Dir e ctor shall malc e 
available salary schedule models >vhich moot 
those basic criteria aft4 mak e availabl e staff Fe- 
sources to advis e aPt^ consult with local jurisdic 
tions » tfee development ef aocoptablo schodulos. 
Board »f county commission e rs »f municipal 
governing boards may adopt aft4 ««e a model 
schedule Bfr as a» alternative, may submit a 
modified schedule f»f r e view aft4 approval by- tiw 
Stat e Personnel Commission. Schedules may tx* 
modified tft order t» provide a staicture deemed 
more suitable to local fiscal policy aft4 financial 
abihty so long a« the other basic r e quir e ments afe 
mot. Modifi e d sch e dul e s shall be accompani e d 
by data aft4 statements of explanation supporting 
tfe* need fof tbe modificalion because »t local fi- 
nanciiil ability aft4 fiscal poUcy. local jurisdio 
tions having a compensation f4aft fof other 
non subject employees fpie^ submit th# salar> ' 
sch e dul e ef ti*at plan fof approval under these 
sam e provisions. 

fe-^ Proposed local salary schodulos shall h^ 
designated t*f submitted to the Stat e Personnel 
Director by the beginning date ef each fiscal y'oar, 
aod at ti+e time »f significant change during fo- 
tenm periods, te submitting. tht» following re- 
quirements shall pr e vail: 

(4-f Pof the programs ef a single county, thi* 
board &f county commissioners shall es- 
tablish aftd submit a proposed salary ' 
schedule. 
(3) ^\Tlen a municipality i* peifonning a sub 
jeet activity, the governing board »f the 
municipality shall establish aft4 submit 
the proposed schedule. 
(4+ \Mien two &f more counties afe combin e d 
iftto a district of afea fof the performanc e 
of aft- activity, the boards (4 county com 
missioners ^ the counties mu ;' t jointly 
ostabli '. h afl4 submit a proposed schedule: 
the district ef afea schedule i* ostabhshed 
independently ef the salary schedule fof 
afty »f th«» individual counties. 
irM rVft- approved sal ar t schedule must l*e m 



proved schedul e shall be applicable to both e^t- 
isting classes aft4 to class e s which ffiay b« 
e stablish e d during it* offoctivo p e riod. 

Statutory Authority G.S. 126-4. 

.1005 ADMINISTRATION OF SALARY 
SCHEDLLE 

Ir^ Sp e cific policy requirements aft4 guidelines 
fof administering the approved salary sch e dule 
afe contained fo th« r e maind e r »f thi* Section. 
See 2^ NCi\C 44t Section rWOOr R«ie* rW^ 
through .1012. Th e s e policy r e quir e ments shall 
apply to ay departments employing o» a com 
petitive service basis. The State Personnel Di- 
roctor Vri4i periodically review with m¥^ assist 
local management i» m e eting the intent of theso 
provisions. 

f^ ¥h# Stato Personnel Director shall ako 
maJc e available upon r e qu e st, advic e aft4 counsel 
tM» other salarv - admini ^. tration pohcy guid e lines 
r e presenting a sound management approach to 
ar e as »f conc e rn io salar i ' administration not 
covered under those basic requirements. 

Statutory Authority G.S. 126-4. 



Th# entrance salary 



.1007 SALARY RATES 

(a^ Now Appointment. 
fate fef »pt employee shall b» at the minimum ©f 
the range of at a salarv' rate within the solar/ 
rang e assigned to the class unl e ss aft employ e e i* 
hired i«- a trainee appointment. Discretion 
should be exercised by boards ef county com 
missioners of th e ir designees oft new appoint 
ment salaries above th«» minimum of th<* rang e to 
avoid creating salan . " inequities within the juris 
diction. 

fb-} Promotion. When a promotion occurs, the 
e mployee's salary ' ' shall be incr e as e d, if it i». below 
the ftew minimum, to at least the minimum pate 
ef the salaP i' rang e assigned te the class to which 
he fs promoted, -ff a» e mploy ee 's curr e nt salary^ 
fs already above the new minimum s . alaPf rate, 
h+* salaryr FHay be adjusted upward of left »ft- 
changed at the discr e tion ef local manag e m e nt, 
provided that the adjusted ■■ alary does ft€4 exceed 
the maximum ef the assign e d salary - rang e , ff the 
salaPf faik between steps ift the salary range, it 
fpi^ be adjust e d to the next higher step i» the 
range. 

fef Demotion. N\'hen aft employee's current 
Sidary faih* above the maximum ef the rang e fef 
the lower class, h» salaPf nia\ remain the sefHe 
««tii general schedule adjustm e nts of range Fe- 
visions bring it- back within the low e r rang e : ef 
h» salary Hwy be reduced te afty ^itef* fo the 
etf e ct within a jurisdiction at aff tunes. leh» ap- lower salary range, a^ long a* the reduced salar) ' 



257 



7:3 NORTH CAROLINA REGISTER May L 1992 



PROPOSED RULES 



dooG Hot- feU b g lovv tfe» minimum Galary fat« ef 
that rang e , tf the omployee's current salar)^ fefe 
botwoon steps ir the lowor rango, it may he Fe- 

W 1 I ^;-^/-| ♦ ■--\ ■< l-« -^ »^ ■•» "-* l^»»lf^£ Cf^^^ 

(4) Salaj)' Adjustm e nts; Salary Plan Rovioiono. 
W^ e n the salar)' rates in the salary pia» ase 
changed ©f a class is mov e d te a higher »f lowor 
salary grad e , the following adjustments shall he 
made ift incumbonto' ealar)' rates: 

(+} W^en it is a» upward revision a»4 the 
omployoo's current salary' is less thaa the 
minimum salary Fate ef the salary range 

shall he adjust e d te at l e ast the minimum 
©f the rango. U the e mployee's salar>f is 
alroady at sf above the Bew minimum ef 
the rango, managomont may eleet te- ift- 
oroaso the 6alar>' t& anothor step within 

howovor, OKCOod the maximum ef the 
rango. 
(Q^ U there is a downward rovioion, manage 

1 1 n. Ill II nJ T ^T^^PT c^T I L,TiL*v,tf oCT^n i- 1 1 1 i/it^t \.nj o 

oalaryr fate hy a corrooponding amount &f 

allow the salary rates te remain the samo. 

(e) Traine e Adjustments. During a trainee 

appointment aft e valuation ef the individual's 

purformanoo aB4 progreos e» the jeh is t» he 

made at frequent intonals. As a g e n e ral guide, 

Th e s e inoroaoes are fiet automatic, and afe net 
necesoarily limited t© the fuH- olapco »f specified 
uitonals. Salar)^ adjustments tt^af he oithor ad- 
' I 'ancod ©f delayed dep e nding upon the progrooe 
ef the omployoo. h* cas e s v i 'horo salar>' adjust 

r-r\ r\nt f t-i •-» t m Woa^v ■-lj--|lf<i«-t.--i-t.-l n .-v mr\ ■-> 1 1 1 ,■ t i-n-i ♦ w-i » «-i i-^j-t r- 

11 1^1 11 J iiu * I,' L.'n.'ii Lnj T lu ii,v^j , iM^i II ruu T ii lo ii uii iv^r^ 

c -^ 1 «-> T-T r 1 1 r« 1 1 «-^ ."if QA ■'■--'* Jiiftf^.^ t /-A ♦■ It Ji m « «-n »-■-» i i «-in .--^ T *V. r-k. 

\j\jLmj. J fi m rr^TT \j\j liu i uuiui^ lu ii t\j i lui uitiui it ^tt ttt^ 

range fof the r e gular classification until the em- 
ploy e e moots att e ducation aad oxporionce Fe- 
quiromontc i fof the appointm e nt; the salary 6a» 

«-'*-' 111'-' * V *J TTT^ I IITJ 1 LJ L_ U lUJ UlUU J 1 UlU KJIU r ^tTT^TTT T^T^T 

perform anco demonstrates achio' . omont ef duties, 
Icnowledgo, af»4 sldlls at the levet ©f the class as 
verified hy a class audit. Adjustments afe t© he 
given upon r e commendation hy the appointing 
authority aftd the supor i door that the omployoo 
has earned aft incr e ase. 

\\nion the e mployee Vrith a traine e appointment 
has sucoossfully compl e ted the training a«4 e^t- 
p e rionoe roquiromonts fof the classification, he 
must he given a r e gular appointment t© that 
classification aH4 his salary increased at least t© 
the minimum Fate ©f the salary range. 

^ Merit Incroasos. A program ©f merit ift- 

CTCTXT!'^T77 rTTTOTT \J\J UL^ ? l.H_f L'^-TJ ^TT^^T^^TT^ LIU PTTtTTiTTT^PCW 

ift a jurisdiction afe e ligible fof consideration fof 
mont salary incroasos. Those incroasos afe FM»t- 
automatic; th^ shatt he based ©ft meritorious 



w©fk- performance. The following factors afe 

©f work as measured hy r e sults; r e lationships 
with others as exemplified hy wiUingnoso t© ae- 
Gept assignments as requested; initiative aftd ap- 
plication ©f time; aft4 amount ©f guidance 
requir e d. Secondary factors considered afe^ Fe- 

iTTTTTTnTTTTrp' \-/ i pT^TrTTTTTTTTTTT^^ IKJ l_" 1 U \J\J 11 1 L'U T , LIl I VI 1 ILLT 

pay rolationships; individual situation; l e ngth ©1^ 
tim e since last inoroase. M e rit incr e as e s are t© 
he equitably distributed among ah eligible 6fH- 
ployeoG. 

Aft e mploye e 's salar>' cannot he raised hy merit 
increases t© excood the maximum salar>' Fate ©f 
the saiafy range assignment t© his class. 

Statutory Authority G.S. 126-4. 

.1009 PAY STATUS 

i i vhon e xhausting annual ©f sieh leave ©f wh e n 
drav i 'ing worker's compensation fof a period H©t- 
t© oxoood 4-3 months. Aa e mployee is ft©t ift pay 
status aftor his last day ©f work wh e n separated 
because ©f resignation, dismissal, death, retire 
ment ©f reduction ift force. 

(h) Normally the fepst workday ©f the e mployee 
is established as the beginning date ©f e mploy 
m e nt. When the fost day ©f a pay p e riod foUe 

£^J^ ^ -n r^ri \ ti r\ -rl .- lA r\\ i itri/A +J^^ j^ r-v\ r^l r\\ ir-t.-^ \~\i^r-r^ n r- \-n r-i f\.' 
\J 11 CT I IKJ 11 fT \J I 1V*JU.T CTTTCr 1 1 l\J \JH ILJITJ T\JV L'UjlJJT" T I U i IV 

©ft the fost ' i S'orkday ©f the period, the date te- 
bogin work wiU he shown as the fe=st day ©f the 

service ©f b e gins leav e without pay aft4 he works 
©ft the last workday ©f the pay period, the s e pa 
ration date shall he shown as the last cal e ndar 
day ©f the pay period. 

(e^ tf aft employee does H©t satisfy ah ^stf sta- 
tes r e quir e m e nts t© he eligibl e fof pay fof the foli 
month f©f other e stablished pay period), he shall 

C^A ^^'"' ' -^ r^r\ -tV-JLr^ V^rx c- 1 c f^r t 1 t~ir\ i=i oj^tiinlltf t i r.-i *-l - .-a j-1 i-vl 1 1 f 
tT^ TTCTTTT ^TTT V 1 l.\J L'LXLTIU \J I I 1_1 1 1^7 U.1^ L UVULTy ? I U 1 i ^ V-' U L' 1 LXL? 

afty e ligible holidays aft4 pai4 leave tim e . Te- 
d e t e rmine his salapy, the actual work tim e , holi 
days aft4 paid leave tim e afe multiplied hy oithor 
his daily ©f hourly salary Fate as it appears ift the 
salar>f schedule. The daily Fate is based ©» a 
regular eight hour schodulo fof 360 w©fh days 

/Tit rr\ r^i-itr 1 i - ■-> ■-i I .- \ r^ fi .-■ l-» t rr~in r- • tv-ktc r-'\t i~i rrt 'it r V*j-t i i r^ n r\ 
\^ H T V l '\rt f ' l_ I, IV 7 UU1_ 11 T L-LLTy LI 11 J 1 L( L V> 1 1 lU- T l.'^J LIL'^JU- 

fof ali omployoos oxcopt afty ©a special ochodules 
whoso w©fh days regularly exceed e ight hours. 
T©f the latter employees, the hourly fate should 

■^ «^*^ 1 1 r t r\ t t-i j-i ♦ j"t t ■~i 1 h .-\ 1 > r-c- t t f i-A «- 1 .- j-k .-j t-^ I i i f --^ n i r li^iJjjio.ii 
U L' L' 1 T TTT 1 1 IV IT-f ITJT 1 IT-f <_l 1 'J Tl T-" 1 rVVTJ pTTTTT HI IT I IT^LIULA ? 

aft4 pai4 leave tiffter If a local jurisdiction has a 
policy applicabl e t© its e mploye e s generally ©» 

policy may he follo' . ' ie d. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



258 



PROPOSED RULES 



Statutory Authority G.S. 126-4. 

.1010 ADDITIONAL COMPENSATION 

(*) Th« rater , provid e d hf A« F i alaP i f plan Fep- 
rC ' Cnt r e mun e ration fof full timo employ mont, 

Vm 1 1 .4/1 T-i /-I t « T-v J' I 1 I . 1 f^ T-fn m rt 1 1 yi~ . n-»-t .Afi f l- t i-i t- i i^f i i 'i I -i r-t .^ 
L' U I CTTT riTTT liJLiLlLlU rTTTTTTTTTlTTTCTTTCTTTTT TTtt tTV I T-TtU CCTT^T 

nucooc . ary oxponL . O ' j inourrtjd incident to omploy 
mont. Ne pey » addition to- tfee regular salary 
shall t>» mad e unlooo Ae pro' i iiiionn afe author 
ig«4 by- tbe appointing authonty aft4 appros'ed 
^t tfe» state ag e ncy aft4 A» Stato Poroonnol ©i- 
roctor. 
fb) Trav e l oxponooo: 

( 1 ^ ; ' \J \XU\J '* UllWJ OT JU- L-' L.' 1V_ 1 1 TVTIXVJ FTT UJ IT l\Jl I IT 

.1 «* T t-/i T-r-1 -t j-i 1 1 i~ J-A 1 I «- J-- , A ^~ 1-1 -1 1 I V-ti-v »-* o « .-1 * J--V "1 *-i t r 
CTT rTTTTTT U.1 IT UU U 1 K.^J u ii i rr l,'\_i L'LllU CTT HI If 

omployej fo* travel- e xp e nr .e , Liuboiotonco, 
automobile OKpenoo Bf depreciation ef 
aft¥ oth e r oxponoo, unl e ss tfe« oamo type 
»ft4 kind &f additional allowance ef sup 
ploment i . hall b» f^^ te- ail- employees »f 
th# ag e ncy ha' i ing ©f incumng substan 
tially similar exp e ns e m tfee perform a aee 
ef their olTicial duties. 
(^ ¥!»& amount allo' i sabl e fef eap depreciation 
shall be established annually by tbe local 
appointing authority. To be eligibl e te 
reoei' . o payment fof «» depr e ciation, tb» 
employee must b# ift » position tft which 
be » required te travel regularly. 

Statutory Authority G.S. 126-4. 

.1011 OTHER PAY 

(a) Fe* thos e cities »f counties m which ati 
employoos are covered by a plaft fof a form ef 
pay ift addition to base salary' fc>f senicos pef- 
formed. tbe coverage may be appro^ i od fop agon 
eie* subj e ct to these polici e s. ¥be local 
authoriti e s shall submit tbe plan to tbe Stat e 
P e rsonnel Director through their Departm e nt »f 
Human Resourc e s R e gional Manpow e r Oft'ic e 
ef Stato OlTice ©+~ Ci>il Preparedness. aft4 certify 
tbat- i4- i* computed »» a consist e nt basis fof aU- 
employees. 

fb) Where there afe Hve- e* more local juris 
dictions comprising a singl e d e partm e ntal unit, 
tbe jurisdictions shall operate a* e«e Hftrt ift e^ 
tablishing asy special pay fonns; the action shall 
be mdependent b^ pro^ i 'isions fof other employees 
&f either jurisdiction. 

Statutory Authority G.S. 126-4: 126-5: 126-9. 

.1012 .ASSIGNMENT OF CLASSES WITHIN 
SALARY SCHEDLLE 

fa4 Within an- approved salary schedule, local 
junsdictions f»ay detemiine salap i range assign 
monts fef competitive servioo classes. ¥be fol- 



lowing basic r e quiremonto shall be adhered to m 

malcing salary rang e assignm e nts: 

(4^ j^ B^e ef appropriat e class relationships 
based upon diff e renc e s m the difficulty 
aH4 responsibility ei tbe work. i» fbi* 
regard, the relative diflorenco between afi4 
among class e s m a class seri e s, aft4 be- 
tween significantly related classes within 
aft occupational grouping, must be main 
tain e d a* r e fl e ct e d by the official classi 
fication plan. Exception requests f«ay 

^^C^^^r^^^^^^Jl^ -•»«-« 1^/1 ^^i ^ J-l-l O ♦ t 1^ J- ^^t 1 J~V /•■ ^ 1 T< C .— ri 1 

policy. Such requests, accompanied by 
supporting data a«4 staff recommenda 
tion, Vi4y be presented to tbe Stat e Pef- 
sonnel Commission fef approval; 

^^^^ ^^TC^^^^T ^^TC^^^T ^^^^^T l^^^reO^T ^^^^7 ^t^^^^^T ^TC^^C^^^^ ^T^^^T^w 

assignment i» it* «se ift ali subject pro 
grams »f tbe jurisdiction; 
f^ ¥be curr e nt salary »f e ach employee, ejt- 
eept under specific circumstanoos included 
ift tbe approved rules fe* salary adminis 
tration, must foii bet^voon tbe minimum 
aft4 ma.ximum steps ©f tbe salary' range 
»f tbe class to which bk position i* as- 
signod; 
(4^ A fmal factor to be used i» maldng salary 
rang e assignm e nts i* consideration el tbe 
local fmancial ability aft4 fiscal pohoy. 
(b} tt i^ ftet tbe intent ef those provisions that 
tbe individual salaries »f competent employees 
be threatened. 

fe} ¥be State P e rsonn e l Director shall provide 
information aft4 guidanc e e« questions »f class 
r e lationships, labor market influ e nce, fiscal poUcy 
considerations, aft4 other matters pertinent to 
tbe determination ©f equitable aft4 competitive 
salary range assignment. 

Statutory Authority G.S. 126-4. 

.1013 PROCEDURE FOR SUBMISSION AND 
APPRONAL 

fa^ 8y tbe beginning date ef e ach fiscal y^as- 
aft4 at times »f afty significant change during ifl- 
t e rim periods, a designated ©f modified salary 
schedule. aft4 a Ikt »f solar) ' rang e assignments 
to classes wiii be submitted to tbe State Person 
Ret Director. ¥be State Personnel Director shall 
r e view tbe proposed schedule aft4 salary ' rang e 
assignments, detemiin e that approval require 
m e nts hav e been met aftd certify jurisdictions 
m e eting these requirements to tbe Stat e Person 
ftei Coinmission. 4-be Stat e Persomiel Commis 
«©« Vrili th e n review aft4 either grant »f vvitliliold 
appro Sid ef tbe proposed plaft ift e ach case, b* 
cases where opposition to a proposed plan i* 
unresol' i ed locally, tbe State Personnel Commis 



259 



:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



sieft wiy k#df tfe« opposing argum e nts » public 
Goooion prior te malcing a final docioion. 

(^ Aft appro' i 'od oalar)' ochodul e aft4 salar>f 
rango ac . C i ignmont plan must be i» offoot ' ■ ' ■ 'ithin a 
junGdiction at- aA timoG. 

Statutory Authority G.S. 126-4. 

SECTION .1 100 - HOURS OF WORK AND 
OVERTIME PAY 

.1 103 HOURS OF WORK AND OVERTIME 
COMPENSATION 

¥he otatQ policy e» "hours »f ' ■ vork aft4 over 
tH»e compL i noation" as outlin e d 'm2^ NCAC 1© 
.1900 'i% intend e d to provide guidanco i» comply 
iftg witfe fodoral regulations; ho' i ' i ovor, eaek 
county, district, e* area jurisdiction is rooponsiblo 
fop compLianoo directly te tfee U.S. Dopartmont 
ef Labor. 

Statutory Authority G.S. 126-4. 

SECTION .1200 - ATTEND.\NCE AND LEAVE 

.1201 POLICY 

The rulos and rogulations i» tfei* Section gov 
oming attondanco aft4 leave afe ofToctiv e e Kc e pt 
vrfeeft a board »f county oommLisoion e rs ©f Ae 
gov e rning body ©f a municipality adopts rulos 
aft4 regulations fe* thoir omployoos go no rally aft4 
fiies th e se ' i vith Ae Stat e Porsonnol Director. 

Statutory Authority G.S. J26-9(aJ. 

.1202 HOURS OF WORK 

shall be 40 hours pef wook. Afiy- departure must 



corr e spond t© a gonorally ostablish e d wofk week 
fof aH- county ef municipal omployoos. 

(b^ Holidays. fh» samo hoUdays shall be ©b- 
s e n- e d as other county ©f municipal d e partm e nts 
obsop . 0. P«f omployoos ©f^ a district department, 
holidays shall be ostablished by tbe gov e rning 
board ©f tbat departm e nt. 

if th e r e is Be uniform practic e as t©- holidays 
obGorv^ e d by othor omployoos ©f the county ©f 
municipality, ©f if h©- sch e dul e ©f holidays has 
boon pro' i tdod fop omployoos ©fa district d e part 
m e nt, holidays approved by Ae State Porsonnol 
Board for stat e omployoos shall be foUowod. 

Martin Luthor King, fe^ Birthday 
Good Friday 
M e morial ©ay 
Indopondonco ^^et^ 

Veteran's Day 

ThanJisgi' i' mg Gity aft4 the day after 

Christmas f3 days) 

Aii ©f tbe holidays listed i» tfeis Rule ape legal 

hoUdays ostablished by tbe Stat e L e gislature ©* 

days obs e r^' e d as holidays as e stablish e d by the 

Stat e Personnel Commission. Employees f«ay 

TTT^TT lU t^J Cr^T^TT 1 1 !_' Ill t f ^J 1 IV W i 1 ^CTTCTTTT U-U. T J rCTT 

roUgious obsoF i ancos. Ag e ncy administrators 
should arrange tbe w©fk schodulo s© that- aft efti- 
ployeo may take vacation leave V i 'hon requested 
because that- day is a major reUgious obiwn'ance 
fef tbat- employee, t^ such request fop vacation 
leave should be deni e d unless it- would create aft 
omorgenoy condition s' l 'hich cannot be prevented 
i» afty othor manner. 

Statutory Authority G.S. 126-4. 



.1203 VACATION LEAVE 

(a^ Scheduling Loavo. Vacation loas'o shall be talcen ©ftly upon authorization ©f tbe appointing a^i- 
thority. Employee proferoncos should be considered aft4 schedules worked ©trt bearing ift mind indi 
si dual aphi agency needs. 

fb) Loavo Credits. Vacation leave credits shall be provided fop a full tim e ©p part time permanent, 
trainee, probationar y ', ©p temporary employee who is worldng ©p ©» pai4 leave fop one half ©f foe peg- 
ularly schoduled V i orkdays i» a month. ¥be pate is based ©ft l e ngth ©f aggregate co' i 'orod sop i ice. Lease 
fop part time employees shall be computed as a porcontago ©f total amount provided te- a full time 
employee, bas e d ©ft tbe porcontago ©f fuU time ' ■ sorkod by the part tim e omployee. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



260 



PROPOSED RULES 



Yoara ei- Aggrogato 
Covorod Sorvico 



Houro Crantod 
Each Month 



Houro 

Granted 

Each Yoar 



Dayo 
Granted 
Each Yoar 



Logo than 3- yoaro 

•3- fe«-fe loGo than 5- yoaro 
5- fetrt- looo than -iO yoaro 
4-& fetrt- looo than 4-§- yoaro 

34 yoaro e*^ moro 



^ hro ■ 5-4 mino . 

^ hro ■ 44 mino . 

4-1- hro. 44 mino . 

4^ hro ■ 4-4 mino . 

45- hro ■ 44 mino . 

4-?- hro ■ 44 mino . 



4-44 

4r&^ 

2Q5 



44 ^7^ 
43- ^/4 
44 2^ 
4* ^t"^ 
S3- ^/4 
55- ^7^4 



fe^ Ma>djnuin iVccumulation. Loavo may be accumulated without afty applicahlo maximum until 
DL'L'L ' mbL ' r 44 b4 e ach cal <? ndar y e ar. Howovor, if tb# omployoo f . oparatoo from sonico. payment fof 
accumulated leave ' jhall »©<■ exceed 344 houro. 0» Decombor ^34 afty employoo ^ i vith mor e than 3-t4 
hourr . »f accumulated leave L . hall have 4h* qxcooo accumulation cancoUod se Aat only 340 hours aje 
carried fonvard te January 4 »f t4ie Be** calendar y e ar. 

(4+ iVd' . ancement. Aa- employ ee may be advanced t4te amount ef l e ai i e nooded &¥i aa indi' i idual har . is 
aft4 which eau- be credited during the remainder ei tl*e calendar y e ar. 

fef I eas e Charge - : . . Lea^ e f i hall be charged ift unitc i ©f tim e appropriate aft4 coni ' istont with the te- 
gpon^ . ibility ef managing abi i enc e r . ift keeping with operational needs. 

(4} I eave Transferabl e . L'nuoed leave FH»y be transferred from ©fte agency te another if tfee agency 
te which the transf e r Is being made w411 accept Ae leave; tbi* includes transfer between stat e afi4 local 
agencies. 
fg^ Separation Payment &f Vacation L e av e . 
fH I ump ^tH» payment fe»f l e av e i» made only at- the time ef separation. A» employee may be paid 
ifi- a lump s«H* fe* accumulat e d leave aet te- exceed a maximum ef 344 hours wh e n s e parat e d 
4«e te- resignation, dismissal, reduction in force, death, ' . ■ orvioo retirement, ef leave without payr 
i^ monthly ^^ roUs, if the last day ©f terminal leave falls eft the last svork day » the month, 
pay shall be made i»f the remaining non ' ■ ' l Orkdays ift that month. 

the hftai salars ' ch e ck. 
f4^ ht the ease ©f a d e c e as e d employoo, paym e nt fe* unpaid salary, terminal leave aftd travel must 

be made, upon establishment ef a ' l alid claim, te- the d e ceas e d employee's administrator ©f e*- 

ocutor. 1ft the absence ef aft administrator e* o.xecutor. payment must be made ift accordance 

whh the provisions ©f N C G S 2%\ 35.6(a) ©f (e^ 
f4>- Aft employee ceases t© accumulate leave during the period ©f terminal lea' i' O. The employee 

will ft©t be charged leave f©f afty holidays occurring during that period. The last Art^ ©f ' ■ ' ■ ork 

i* the date ©f s e paration eveft ' ■ ' ■ hen the employee recei' ^ es p^ f©f accumulated vacation leave 

extendmg b e vond thi* dat e . 



Statutory Authority G.S. 2SA-25.6(aj,(c); 126-4. 

.1204 SICK LEA\E 

fa^ Sieh Leave Credits. Siek- leave credits at the 
Fate ©f * hours pef month ©f % hours pef yea? 
shall he pro' ^ ided f©F a full time ©f part time 
(half time ©f more) permaneft tr traine e , ©f 
probationary employee ■*!*© i* w - orking ©f ©ft 
pai4 leave f©f one half ©f more ©f the regularlv ' 
scheduled ' ■ vorkdays ift afty month. 

I e a' . e f©F part time employees shall be com 
puted as a percentage ©f total amount provided 
t© a lull time e mploy ee . 

fh-)- Accumulation. Sieh leave is cumulative 
indefinitely. 

(-«H Advancement. 4he appointing authority 
iftav adv ance sieh leave set t© o.xceed the amount 



aft e mployee eaft accumulat e during the current 
calendar year. 

f4| \"erification. ¥© avoid the abuse ©f «eh 
leave pn' ^ ileges, the appointing authority may 
require a statement from a medical doctor ©f 
oth e r acceptable proof that the employoo was 
unable t© work d«e t© personal iUnoss. family 
illn e ss, ©f death ift the family. 

\\. J V. ^'V_ \J I rrr^TT L V li. T V . >.' H_ IV l\.Li T \J 11114. T C'V. LJ-.w.'\- U- 

fef illness ©f injury ' . vhich prevents aft employee 
from perl'omiing usual dutic . i^f^ f©f the actual 
penod ©f disabihty comiected ' ■ vith childbearing 
©F r e cov e rv' therefrom. 

Note: Fein(do employees shall ft©t be penal 
b»4 ift their condition ©f employment be- 



261 



7:3 l\ORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



caus e d by ©f contribut e d te by prognanoy, 
miocarriago, abortion, childbirth a«4 rocov 
efyr Dioabilitios reouUing from prognanoy 
shall, fof sieit leav e purpooos, be treated tb# 
Game a§ any other tomporany dioability s«f- 
fer e d by aft omployoo. Accumulat e d siek 
loavu fHdy be uoed fof the p e riod ef actual 
disability as a rooult »f childbeoring ef rooo\' 
efy thorofrom. Since ther e is w» certainty as 

t r-v Tt -Kf-i^ .-1.r--^V-\i1if \r ■^.-'tl 1 --il It : hj'M^ n '' nni"i nnofj A 

doctor's certificat e sbail be required verifying 

{Pf ft taay ^se- be request e d feff 
f44 modical appointments, aft4 
f5^ Illn e ss ei a member ©f the employoo'o 
immediat e family. 
Note: P©f this purpose, immoJiato family is 

A .\\tn rt'i o c r-j-tf-M 1 f-/-i «-* "-i «--^ .-iff- '^ >■■>« I 'irf^ri i \T\f\\ iHinf 

U(?IlMT?tT CIW 5T^T_rtl'^J L'UJ L.1 1 1 1 J , U'lLXlUI VIT \ IJUJIU^JUI^ 

step' relationships) aftd other dependents tv- 
iftg ift tbe household. 
(g) D e ath »f a memb e r ef tbe employee's ifH- 
m e diat e family. 

Note: P©f tbis purpose, immediat e family is 

defined as spouse, parents, childron, brother, 

sister, grandparents, aftd grandchildren. /Mso 

included are tbe st e p, baMr aft4 in lavi i ' re- 

lationships. 

(b) Loa' i'e Charges. Only scheduled work 

hours sbaU be charged ift calculating tbe amount 

&f leave taken. Holidays shaU aet- be counted as 

siek leave. 

(i) Sieb- I.eavQ Transf e rabl e . Unus e d siek leas'o 
Hwy be transferred from »fte agency V» another 
if tbe employing agency is wiUing te accept itr 
This includes transfer between state aftd local 
agencies. 
{^ Separation. 
f4-^ Sielr leave is set- allowabl e ift terminal 
leave paym e nts wbe» aft e mploye e sepa 
rat e s from oop i ico. 
^ tf aft employee separates aad is oi ie rdrawn 
©ft leave, it- wili be n e c e ssary to- mak e de- 
duotions from the fiftal- salary' ch e ck. 
(It^ Reinstatement ©f Siek L^ e av e . 

rT^ CTrtrC rWCTTT? fJllLtJT TTt? rt?iTTOTTtTl?tT t'TTTITTT CtTT 

e mploy ee returns from authoriitod leave 
without pay ©f when reinstated witbift 
throe y e ars from afty type ©f separation. 
(4-^ \i aft employee separates from a stat e 
go' ie mm e nt position aftd returns t© local 
government e mployment f©f viee versa) 
within three years from tbe last- workday, 
the employing agency fpi^ consider rein 
stat e ment ©f siek- leave cr e dits accumu 

Lai^fcii *"■ * * " '"^ t « rf~i ,-t r\r L~n 
IVi VK^Kl rTT 1 1 ILh' lU lie \Jt ^^ 

Statutory Authority G.S. 126-4. 



.1206 MILITARY LEAVE WITH PAY 

(^ The following definitions wiH- apply te tbis 
Subchapter: 

(4^ "lArm e d forces ©f activ e military s e p i ic e " 
moans jVrmy, Navy, Aif Force, Marino 
Corps, Coast Guard aftd othor organiza 
tions which are brought iftt© fodoral mill 
tafy soP i ice during aft e merg e ncy ©f 
wartim e . 
f3) "Extended activ e duty" means that- period 
©f time fof which aft employee is ordered 
t©- active military' s e rs'ic e under the fol- 
lowing circumstanc e s: 
(A^ ©fte voluntary enlistment ©f entry iftte- 
afty ©f tbe acti^'o military sersices fof a 

during tbe employee's career as a go ' ■ em 
mental omployoo ©f fef aU- such 
ordistmonts ©f entries made during a de- 
eded stat e ©f national emergency ©p dur 

(&) upon call up ©f order t© federal activ e 
duty fof aft employee ift tbe National 
Guard ©f ©fte ©f tbe other rosor^e com 



(^ 



ponents; 

Golectivo s e rvic e conscription. 

"Reser . 'o components" ©f tbe Unit e d 
States Armed Forces moans tbe National 
Guard, tbe iVrmy^ PtOsoP i ' e , tbe Na' i al Re- 
s e r i ' e , tbe Marine Corps Roseno, tbe Aif 
Forc e ResoP i O aftd tbe Coast Guard -Re- 
Gor i 'e. ¥be Civil Atf Patrol is ft©t a Fe- 
sefve component; it ts aft Aif Forc e 
iVuKiliary aftd its members afe H©t subj e ct 
t© obligatory oor i ico. Tbe National 
Guard is unique among tbe reserv e com 
ponents ift tbat it bas a dwal- rol e , serving 
both as a federal reserve compon e nt aftd 

H^ 1 11^ dlul^ ;Vt LhiIlI. ttt il^ lOlt? ct^ i3 ICllO 

Mditia tbe North Carolina iVrmy National 
Guard aftd tbe North Carolina Aif -Na- 
tional Guard respond t© tbe Governor 
who is their commander in chief aftd 

W?I TV CtS lllW IILLLIIUI T CtTTTT t^T T TRJ L^WIV ^^J T 

emm e nt. Thoreforo, tbe National Guard 

is subject t© active stat e duty upon order 

©f tbe Governor. 

(b) Leave vritb pay shall be granted t© members 

©f resor i ' e components ©f tbe I nited States 

fVrm e d Forces fof certain periods ©f acti' i o duty 

training aftd t© members ©f tbe State Militia 

(National Guard) f©F state military duty. 

fe) Period ©f Fntitlem e nt fof Ail R e s e r i'e 
Components. Militapj l e av e wttb pay sbail be 
granted t© fuU timo ©f part time pen'nanent, 
trainee aftd probationary employees fof % 



7:3 NORTH CAROLINA REGISTER May I, 1992 



262 



PROPOSED RULES 



■ . vorldni! hours annually (prorat e d fof part time 
omployuor . ) fof asy type »f acti' ie nulitai-y dtrty 
&i a mombor fte* &» oxtondud activo duty as d«- 
fin e d ift Paragraph (*} fvf A+s Ruk'. ©» Fafe &e- 
ca i iions 4«# te- annual training'o (oummor camp) 
bL ' ing cchodulod »» a fudc'ral fiooal yea? basis aft 
employ ee »»¥ be rcquirod to attend tw» periods 
©f training ift efte calendar y e ar. Pef instance, 
Ae L ' mploy ee fHay be roquirod to attond annual 
training fe* fodoral fiscal yeaf 1980 ift March aft4 
fof fc'dcral fiscal yeaf 1981 ift Nov e mb e r. f-Bf 
tbi« purpos e only, aft omployoe shall be granted 
a» additional % hours military l e av e (prorat e d 
fof part tim e umployoos) during tfee samo colon 
4af yeaf ati required. 

(4^ iVdditional pL ' riods ef ontitlL ' mcnt fof Na- 
tional Guard ©ftiy are a*i foUo' i Vs: 

f44 infruquont special activities ift the int e r e st 
»f the State?, usually fte* ojicooding »fte 
fciayr >vh e n se authorutod by the (lO' i omor 
ef h*« authorised reprcscntatis e . 
(4^ activo statQ duty (domostic disturbanc e s, 
disasters, search aft4 roscuo, et&r) fof peri 
e4s Hot oxcooding ^ consccutivQ calendar 
days. Pef periods ift excess &f ^ days, 
omployooo shall be e ntitl e d to military ' 
l e as e with difTorontial f&f botwoon mih 
tafy pay afl4 r e gular govommontal p^ if 
military' pay i* the l e ss e r. Military l e av e 
fof actise stat e duty is to be consid e r e d 
separate from aft4 ift addition to militant 
leave which H»y be granted fof other 
purposes. 
(ef Periods si Entitlement fof C\\\[ Atf Patrol. 
^VTlon performing missions e* encampments a«- 
thoriz e d aft4 r e qu e st e d by the U.S. r^ F^'orc e Bf 
e merg e ncy missions fof the Stat e at the requ e st 
ef the (iosemor ef the Secretary' »f Crime Con 
tfel aft4 Public Safely, a member ©f the Civil Atf 
Patrol i« entitled to military leave aet to oxceod 
a combined total ef % hours (proratod fof part 
time employees) » afty cal e ndar yeaf unless »tf*- 
onviso authoriz e d by the Governor. Such senic e 
by a local e mploye e may be sorified by ttie Sec 
retar . r t4 Crim e Control aft4 Public Saf e ty upon 
r e quest ef tfee employing agency. 
fff Inacceptable Periods. 
f4-^ regularly scheduled ««ft ass e mbh e e usually 
occurring eft weekends aft4 referred to as 
"dnlls". iVJthough these periods afe «ft- 
acc e ptablo fof military leav^e with- payr the 
e mploying ag e ncy is required by federal 
la¥r to excuse as- employee fof regularly 
sch e duled militap i' training duty. If Ree- 
essary the omployoo's wefk sch e dule shall 
be appropriately rearrang e d to e nable the 
employee to attend these asr . emblies. Te 
determine tfie dates ef those regularly 



scheduled wiit assembli e s, the employing 
agency may require the e mploseo to pfe- 
v44e a «ftit training sch e dul e ' ■ vhich lists 
training dates fof a month ef more ift a4- 
vanoo. Employing agencies afe set pe- 
quired to e .xcus e aft omployoo fef military 
senice perform e d under the circumfltanoos 
defin e d ift Subparagraphs (f)(3), (f)(3) aft4 
ff^ef tiHsferiet" 
{^ duties resulting from disciplinary actions 

impos e d fey mihtary authoriti e s; 
f^ fof unsch e duled ef incidental mih tar/ ac- 
tivities such as volunteer wefk at military 
facilities, unofficial rrulitary acti' i ities, etGrf 
f+) fef inactiv e duty training (drills) p e rformed 
fef the convenience ef the m e mber such 
as equivalent training, &f4it «fttt assem 
blios, malco up drills, eter 
fg^ j\dministrativo R e sponsibility. The efti- 
ploying agency fftay r e quir e the employee to 
submit a copy ef the orders ef other appropriate 
docum e ntation C i idoncing p e ri'ormanc e ef fe- 
quir e d military^ duty. 
(4i-) Retention aft4 Continuation ef Benefits. 
During the period ef military' l e ave without pay, 
fte employee shall incur asy less ef senice ef 
suffer afty adverse service rating. Tbe omployoo 
shall continue to earn aft4 accumulate sielr aft4 
annual leave, eafft aggregate sendee credit aft4 
receive any promotion ef salary incr e as e fef 
which othenvise e ligibl e . 

(i4 1 eave With ¥^ fef Physical Examination 
fef Military Senice. Aft employee shall be 
granted nocesi' i ory time eff when aft omployoo 
must undergo a required physical examination 
r e lating to military ' oenioo. 

{^ .Military l e av e With Diff e r e ntial Payr A4if- 
itary leave with diff e rential ^»r between military' 

I HJ T HI I\I [ \_ 1,IJ III! tTT T \^'l I U I H^'I I llil l.'TJl T , IT 1 1 IIII I U! T l„TX T 

is the lesser, shall be granted fef active state duty 
fef periods tft excess ef ^ oonseoutive calendar 

Stdlulory Authority G.S. 126-4(10); I27A-1I6. 

.1207 CIVIL LEAVE 

fa^ :fofy Duty. When aft employoe senes eft 
a jury, he is entitled to leave with pay fef the 
period ef absence required. He is entitled to his 
regular compensation pfos fees roceised fef jefy 
duty. 

fb^ Court Att e ndanc e . WTi e n aft employee at- 
tends court ift conn e ction with fos official duties, 
se leave ts requir e d. Eees receisod as a witness 
while sening ift aft official capacity shall be 
turned ifrte tfte ag e ncy fef V i hich he works. 
(Wlien aft employe e is required to attend court 
e» a dav that he would nonnallv be e#7 the tift^e 



26i 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



is to be consid e r e d as worldng overt im e a»4 tk» 
omploy ee wiy be allowod compensator ; ' loavo.) 

W^on aft omployoa is subpoonaod ef dirocted 
by proper authority to appear as a witn e ss, be 

rt 1 1 1 T rr t^p ej ui i ivtj v/i ? j_r luu t u tt i iii iju. t ■ i u t t^ ivuu 

roooived shall be tumod ift to tbe state agency fef 
which be works. ¥be e mploy ee fftay Hse annual 

1 ni^ t m T-*-! t K rif 1 1-1 on t .-ilrr^ <-»» t nl 1 /^.-^T rri 1 1 -if l-i w* o \ f < t-i 
^^TTT^? Z U L 1 l\Jl 1 1 1U.11 ILUVv Ul T IT lUU. I VJ * I 1111 ITU-T UI 

which ease be may r e tain aay foes rocoivod. 
Statutory Authority G.S. 126-4. 

.1208 EDLCATIONAL LEAVE 

Educational loavo sbaH be granted p e rman e nt 
afi4 probationary omployooD ift acoordanoo with 
rules adopted by tbe e mploying agency. 

Statutory Authority G.S. 126-4. 

.1209 LEAVE WITHOUT PAY 

(a^ A full time ef part time perman e nt, 
probationaP ! ^ &f trainee employee may be 
granted leave without pay ift tbe following sito- 
ationo: 

(IT 11 IVJ I Ull ILUI ULl It ^^TT^T^r U I U 1 LTU L.' UJ c^^ IXJ LVJI UIUH, 

leave bas boon e xhaust e d; 

(-3^ parental leav e ; 

(4) educational leave to b e tter equip tbe efH- 
ploye e fof tbe perform a aee ef bis duties 
aft4 r e sponsibiliti e s; 

f4) poriodo »f activ e duty wrtfe tbe armed 
forcoo »f tbe L ' nit e d Stat e s as a r e sult »f 
involuntary draft ef military conscription, 
ef fof a period ef ©fie voluntar)' 
erdistmont ftot- to oxcood fo«f y e ars; 

(4) special work aosignmont to Ae state ep 
federal levels »f govommont; 

f4^ vacation purposes; e* 

(^ fof other roasono doomed justified by tbe 
appointing authority. 
fb) Loa' i' O without pay7 e xcept military leave, 

c ri ■•> 1 I t~t r\i r\ -u .^ r-i r^ r\ -i rv\ ■-» i.- t rtn » i r-r\ ft T I I m /-^r\-il-\ c- \t:tt\\%ri 
UllLLLl HVl U A,t^T.TJ CT 11 lUJVliilLirTT tTT I li. II Il/Mll IW 'Tl II 1X1 1 

a calendar yeaf unloos the appointing authority 
r e quests aft e xtension aft4 it is approi i 'od by tbe 
state agency a»4 the State Porsonnol Dir e ctor. 
The docioion to grant loavo without ^etf is aft 
administrative Ofte fof which tbe agency head 
must assume foil responsibility. Factors to con 
sider afe noods »f tbe e mployoo r e qu e sting l e ave, 
workload, nood fof fdling employee's jebr 
chanoos &f e mployee's r e turning to duty an4 tbe 
obligation »f the agency to reinstate tbe es*- 
ployjo to a position ef like status aft4 payr it- is 
tbe responsibility &f tbe agency to administer 
l e ave vrithout pay ift a manner tbat is oquitablo 
to aU ef its omployooo. 

(e^ Aft e mployee going ©ft sielt loavo V i ithout 
f>^i^ military leave without ^s^ parental loavo, 



worker's comp e nsation loaso, ef afty othor leave 
without f€^ (except fof vacation purposes, ef fof 
othor poroonal roaoons net exceeding -W conseo 
utivo workdays) may e xhaust annual leave &f 
H»ay rotain paft ef ail ef accumulated leav e until 
tbe employee returns from leave without payr 
However, if l e av e V i ithout petf oxtondo through 
Dooomber ^ afty annual leave accumulation 
abov e 34© hours shall be oancellod. AH acou 
mulatod annual leave shall be e xhausted by aft 
employee befor e going e» leave without pay fof 
vacation purposes, ef fof othor personal reasono 
ftet exceeding 44 conoocutivo workdays. \\Tien 
aft employoo is oxhauoting annual leave be con 
tinues to eafft leave, is ohgiblo to take siek leave, 
is entitled to holidays, afi4 is eligibl e fof salary 
increments during tbat period. 

(4) At tbe expiration ef such leav e , tbe en*- 
ployoo shaU be roinstated to a position ef similar 

available d«e to budgetary reduction ift staff. 
¥be e mploye e shall rotain accumulated siek 
leave, retirement status aft4 timo oamod to' . vard 

eft4 ef tbe loavo tbe employee shall give written 
notice ©f intention to return to work; othorwioo, 
tbe employer is aet required to provide such 
reinstatement b«t may 4e se if feasible. Failur e 
eft tbe paft ef aft employee to report promptly 
at tbe expiration ef tbe leave ef absence, except 
fof satisfactory roasono submitted i» ad^ ^ 'ance, 
shaU be cause fef dismissal. 

Statutory Authority G.S. 126-4. 

.1210 SPECLAL LEAVE WITHOUT PAY 

(a^ Siek L e av e Without Pay^ Siek leave ' . vith 
e«t pay fptsi^ be granted by tbe appointmg a«- 
thority fof tbe romaining period ef disability aftef 
siek l e av e bas boon exhausted. Tbe employee 
Hiay alse exhaust cuinual leave before going eft 
loavo without payr ef Hi«y retain part ef aH ef 
accumulat e d annual l e av e until bis return to local 
sen'ioe. fo tbe cent tbe employee noodo mor e 

t ti ■-■ «-i fi r\ ,-1 t Tf-v ^^ «- f-\ T r-t n I j- 1 i-i.r-t i i r^ ^l-^■^^^■-^^l•^■ «-* "It r "1 fi Cfc^^_ 

1 1 iUll t7irV7 J \j\JLl. \J 1 OTCTT IVXt T \J TT llirT-T Ul L'U. y , CTTT CT7T 

tension must be requested. 
^ Par e ntal Loai i ^o. 
ff^ Tbe natural parents ef a newborn infant 
afi4 tbe parents ef a nev i ly adopted child 
under five years ef age may request loavo 
without pay under pro' i ioiono ef this pel- 
ievr Tbe natural mother may Hse accu 
mulated siek leave fef tbe actual period 
ef temporary disability caus e d ef contrib 
»te4 to by prognancy aft4 childbirth: see 
"Sick Loai . 'o" ift Rule .12Q ' 1 ef tbis Sub 
chapter. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



264 



PROPOSED RULES 



f3^ The agonoy hoad nhall grant loavo without 
prHr te- the natural mother fof ali ef tfee 
tifiw ef poruonal dioability fiot covorod ^ 
&i^ k ' ave (eith e r becaus e th# Brnployoo 
ha* exhau^ i t e d att 464r l e av e e* pr e f e rs to 
rt'tain tt^ Sinoo thoru » »»■ c e rtainty t» to 
svhcn di i xibility actually bogino aft4 ondo, 
a doctor's oortiilcato shalt be roquirod vep- 
ifying, »» » prorcribod form, tfee employ 
ee% period trf temporap .' disability. 

f^ I imitation ef e mployment by Ae mh- 
ployor botbro aft4 aftor childbirth is pfe- 
hibit e d, oxcept fof medical rcaoons a* 
d e t e rmin e d by a physician. 

(4^ 44*e natural mother may desir e to be eft 
lea¥e from ' ■ vork prior to and or after the 
time »f actual disability, l e as e without 

tbe pro^ ' isionu »f tl**& policy. 
(4) I eas e svithout pay fof Ae par e nt »f a» 
adopted child eas begin He- earlier than 
©fte week prior to tbe date the parent pe- 
c e iv e s custody ef the child. 
fe-^ Military l e ai i o Without Pay. I e as e wfth- 
ewt fs^ shall be granted fof certain periods ef 
active duty ef fof attendance at service schools. 
Except fof e.xt ended active duty [cnverod i» Sub 
paragraph f^ ef this Rul e | Hse ef aU ef afty pef- 
tie» ef a» employ ee 's % hours ef annual militars ' 
leave (pro rat e d fof part tim e e mploy ee s) with 
^ei?r Bf regular annual (vacation) loavo may be 
us e d ift liett ef ef ift conjunction with militarv' 
leave without payr 

f44 i\ttendance at Sorvico Schools. Military 
l e av e without pay shall be granted fof at- 
tendanc e at s e nice schools when such at- 
tendanca i* mandatory fof continued 
retention in- the military wnico. Ifof 
purpos e s oth e r than retention, military 
leave without ^^^ fPtm- be granted efH- 
ployees fof attendance at resident militapy 
sep i ice schools. Ho>vever, vrh e n the ef«- 
ploy ee is requir e d by a reserse component 
to att e nd a resident spocialiged military 
cours e becaus e the course i^ net availabl e 
by aftv other means fherr correspondence 
cours e . USAR School, eter^ military leave 
without f^ shall be granted. 4fo verify 
that such a cours e js mandatory the 
agency fptsif contact the Department ef 
Crim e Control iif>>4 Public Safety. 
(-i+ R e sene Inlistment Program ef 1963 
(RFP t ' }). I eave without pay shah be 
granted fof active duty training upon tfti- 
hai e nlistment fo a reserve component. 
This period is variable bat aserauos about 
St* months aft4 is sometimes referred to 
as ^^si* months' activ e duty." 



(^ E.xtondod Annual Activ e Duty fof Train 

iftgr Leave without pay shall be granted 

if additional time is required beyond the 

allowabl e % worldng hours e ach year. 

¥he omployoo f«ay eleet to Hse annual 

leave rather than ge- e» leave ss ' ithout pavr 

f4^ Extended j\ctive Duty. Militopy leave 

without pay shall be granted as outlined 

ift this Subparagraph fef periods ef activ e 

duty ift the Armed Forces ef the I'nited 

States. 4^ ©f militarv' leave with pay is 

Het authorii^od upon efitfy iftto extended 

active duty. 

(A^ EmpioyoQ EUgibility. FuU time e* 

part tim e p e rmanent. trainee aft4 

probationary employees who e nt e r activ e 

military' sonioo und e r situations as defined 

ift Rule .1206(b) ef this Section afe oligi 

bie fof leave without pavr 

(©^ Additional leave svithout pay shall be 

granted fof the following periods: 

fi^ Wliilo aw^aiting entry iftto actiso duty 

provided aftv delay is ftet 4«e to the 

employee's own fault, tf desired by the 

e mploye e this shall include afty- period 

ef Hp to ^ days to allow employee to 

settle afty personcJ matt e rs. 

(ft) ¥he period imm e diat e ly following 

militarv ' s e rv ' ic e while the employe e 's 

r e instat e m e nt with local government is 

pending provided the employee applies 

fof such reinstatement within 94 days 

following release from activ e duty. 

Please not e that it is the employee's ee- 

sponsibility to apply fof r e instat e m e nt 

within the 90 day period. 

fiii^ Afty penod ef insoluntapy extension 

ef aft e nlistm e nt which originally was 

extension is Hftt made at the employ ee 's 
request ef 4«e to his her own fault, fo 
ease si involuntarv ' e xt e nsion the effi- 
ployee may be required to pres e nt sat- 
isfactopy evidence that such extension 
was ift feet involuntaPf. 
(iv) Employees hospitahzod fof senice 
connected disabihty under honorable 
conditions aftd ftet tfoe to th e ir own 
misconduct shall be entitled to miUttuiy 
leave without pay fof that period certi 
fie4 by the attending phyiician as fe- 
quired fef adequat e r e cup e ration to 
return to employment. jMso. the efH- 
ployee shall be entitled to leave without 
pay fof the penod from the time et re- 
lease by the physician until actually 
reinstated ift local emplo>nient pfe- 
vidtMi the employ ee apphes fof such 



265 



7:3 NORTH CAROLINA REGISTER Mav L 1992 



PROPOSED RULES 



rL'inctatom e nt within 90 day* »f such 

r e l e as e by tfee phvfacian. 
{4^ Bmployoo R e f i ponf i ibility. fte omployoo 
»4»li make availablo te tb« agency hoad a 
copy ef ordore to report fef activ e duty, 
4»tt advif .e tbe agoncy hoad »f Ae offoc 

&f return, shall provide Ae agency hoad 
\\\\\\ afty r e quest e d information rogarding 
mihtary sonico.' shall be rocponsiblo fof 
making apphcation fof roinotatomont 

1 1 ■< * tn 1 T-i L^i ■-•1 -1 \ :f tt-j-i TTt ti^^ LiiiiA of ff^ r fi r ot i^n 

from soP i ic e . 
(4) Employer Rosponsibility. it- sbali be tbe 
rooponsibility ©f tbi* agoncy hoad to aacor 
teift tbat- the employee k eligiblo fof mih 
tefy leave without payr Tb* agency h e ad 
shaU e xplain to tbe employee the rights 
aft4 benefits conc e rning leav e , salary ift- 
creases. retir e ment status aft4 rein 

L- 1 ■ 1 ♦ , 1 T-l-^ j -k »-i t Tt-,-1 t-v> l^i^il^^l t . ■- 1 «-T-»-i c W I 1 1 1 II 1 L^^ifik 

iS, NCi\C. 4JT Section 44flftT ferie r44(^ 
indicating fiftai separation shaU be oub 
mitted if the e mployee oxcoodo the time 
limitations fof militar . ' leave >vithout pay 
e* if tbe ag e ncy learns during the period 
»f leave without f*^ that- the omployoo 
wiy ft©4- r e turn to gosemmental senico. 

f^ Pv e l e ntion afl4 Continuation »f Benofits. 
^tbe omployoo F«ay choose to have accu 
mulated annual leave pai4 m a lump sum. 
may exhaust tbi* loa' i o, e* may retain part 
ef ali &f accumulated l e av e until return to 
gc i emmontal senico: Ae maximum ae- 
cumulation €vf 34W hours applioo to lump 
^^Hfft payment. Fntitlomont is given to faU 
r e tirement membership senico credit fof 
tbe period ©f such active senico if* Ae 
iVrmod f'orces aftef being separated ef Fe- 
l e ased, ef becoming e ntitl e d to be oopa 
rated ©f released, from activ e military 
s e nice fof other than dishonorabl e oondi 
tions. Under tbi* prosision. credit i« te- 
cei' i ed fef such s e n ice upon filing with tbe 
Local Gosommont Retirement System a 
copy ©f the senice record showing dates 
©f entrance aft4 separation, fb* addition, 
tbe retirement membership s e nic e cr e dit 
» availabl e to employees who return to 
governmental employment within a pe- 
B©4 ©f Vw© y e ars after the earliest di*- 
chargo date, ©f any time after discharge 
aft4 who have r e ndered 4-0 ©f more years 
©f mombership m tbe retirement syst e m.) 
Voluntary e nlistments following tbe earli 
e«* discharge afe h©* creditabl e . 

f^ Reinstatement from 1 ea' i o NMthout ^s^ 
bof .Militar)' Senico. LimployeoG ©» loa' i O 



without pay who afe ooparated ©f 4is- 
c barged from mihtap/ s e nic e under 
honorable conditions aft4 who apply fop 
roinotatomont within tbe established tone 
limits shall be reinstated to tbe same pe- 
sition e* ©«e ©f Wie status, seniority a«4 
payr tf; during militapy son'ice, aft »»- 
ployoQ is disabled to tbe extent fbat- tbe 
duties ©f the original position cannot be 
performed (be omployoo shall be rein 

1 1 -I 4 T-i tl^^ j-4«j-^V-«»l«4tr ll^^i ■-1 TT-i ■-> I J-v ^ • f^ --^ f 1- -1 1 f-i j-1 - 

TTTTTT T I rV OTTrCTTmiTTT T I rV i- 1 1 1 1.'!^^ T W J JU.11X1 J 

upon reinstat e ment shall be bas e d ©» the 
gonoral salary^ incroases d«e whilo ©» 

iWC^T t^ rTlV CTTTTTTTT^TTT TJI L'V I IVJ I IIIUJ IHJ L'tllCU X 

incroasos mw be considered by tbe agency 
head. U tbe employee wa* i» trainee sta- 
tes at- tbe time ©f military leave, tbe addi 
ti©ft ©f troinoo adjustments fftay be 
considered if it- 6a» be dotormined tbat- tbe 
military exporionco was directly related to 
developm e nt ift the afea ©f civilian work 
to be perfonned. Fmployeeo who resign 
without knowlodgo ©f their e hgibility fof 
leave without pay aft4 reinstat e m e nt bon 

reinstatem e nt benofits ©f tbis Paragraph, 
shall be reinstated from military sen^ice 

boon granted leave without pay fop miU 
tetf¥ senice. A«- employee ©» leave with 
©wt pay vrb© rocoiveo a discharge ©f 
separation under conditions less than 
honorable FHay be considered fof rein 
statement. ?4*e decision to reinstate a» 
employee s© discharged ©f separated shaU 
be the responsibility ©f tbe agency h e ad. 

Statutory Authority G.S. 126-4. 

SECTION .1300 - DISCIPLINARY .ACTION: 
SLSPENSION AND DISMISSAL 

.1315 LOCAL AGENCIES SLBJECT TO 

SAME RLLES .4S STATE AGENCIES 

local government agencies subject to Chapt e r 
4-34 afe required to conform their disciplinary 
practices to t4te ruluu governing disciplinary - 
action, suspension »ft^ dismissal ©f stat e em- 
ployoos. S£fe i^ NCAC U SECTION .0400 - 
DISC1PLIN.\RY ACTION: SUSPENSION 
A;ve> DISMISSiVL. fetles U rOm^ - Mri^ P©f 
Ae purpose e( utilij'.ing those rules, tbe ' i vord 
"permanent" shall moan a person who bas com 
pleted a probationary period ©f ft©t- less than 
thre e months ft©f more than nine months. SEE 



7:3 NORTH CAROLINA REGISTER May 1,1992 



266 



PROPOSED RULES 



2$ >;c.\C U SECTION 4W0ft - appoi>:t 
MCNT AXe SEPARATION, R^rie rfr^fOr 

Statutory Authority G. S. 126-4; 126-35; 126-37. 

SECTION .1400 - ACTIONS BY LOCAL 
GOVERNING BODY 

.1402 ESTABLISHING EQLIVALENT 
PERSONNEL SYSTEM 

54*e Stato Porsormel Aet proviJcL i Aat ' ■ shon a 
board ef county cominiosionLTa OGtablic i hcJO aft4 
maintain f) a poroonnol syotom &f cyotom portion 
fof ay county omployoos tfeat- is oubr . tuntially 
equival e nt to A« syctom OGtablishod under Gon 
g*ai Statute -l-S^r Ae competitivo oonice employ 
et» »»¥ al^-e be includ e d within th# terms ef such 
f . yr i tem »f portion. ¥be Stato Pori i onnel Com 
miocion determineo tf tb« syst e m »f system pe*- 
tieft is equivalent. WTion requootmg approval, 
tb« board ©f county commiosionors shall submit 
a copy ef ali rul e s aft4 regulations pertaining te 
Ae system. ¥ht* State Personnel Commission 
shall conduct a review ^hich »ay mclude staff 
audits ei' Ae system. M a system i* ruled to be 
substantially equivalent, the OfTico ©f Stato Pef- 
sonnel shall conduct aft annual ro^ievr ©f county 
operations to dotormino that- the substantially 
equivalent system is maintained, tf at any tim e 
tfee State Personnel Commission fmds that the 
system is ft© long e r substantially equnalont, ap- 
pro' i al vrili be discontinu e d at that time. 

Statutory Authority G.S. 126-11. 

.1403 CFRTIFIC.\TION: PERSONNEL 
ADMINISTR.\TION SYSTEM 

fa^ j^ 64wi iman ©j^ the board ©f county com 
missioners f©f appropriate governing body) shall 
submit to the OtTioe ©4~ State Personnel c e rtif 
ioation that the jurisdiction is maintaining a sys- 
tefft ©f personnel administration ift conform anoo 
¥rith the I-ederal Standards f»f a M e rit System 
©f Personnel Administration. Initial certif 
ications are to be subnutt e d e^ft ©f before October 
+T 1980. Subsequent certification shah be &«h- 
mitted ' ■ shon there is chang e ift the incumb e nt 
chairman, a major re organiKation ©f the juris 
diction's personnel system, ©f upon request from 
the OtTice ©f Stato Personnel. 

(t*> A certification form must be used. Before 
signing a certification, the chairman f»a¥ request 
ad' i ico Bi¥^ assistance from the OlTice ©f State 
Personnel ©f the state program agency i» order 
to determin e whether the competiti' i ' e s e rvic e 
agencies under that jurisdiction afe ift compliance 
ssith the Standards. 



Authority G.S. 126-4; Federal Standards for a 
Merit System of Personnel Administration. 

.1405 MERIT PRINCIPLE I: RECRUITMENT: 
SELECTION: ADVANCEMENT 

General Requiromont. Ptocruiting, s e l e cting aft4 
ad' i oncing ©f omployeos wiH be ©ft the basis ©f 
their relativ e abihty, knowl e dg e , aft4 skills, '-fhis 
wih include op e n consideration ©f qualifi e d ap- 
plicants fof initial appointm e nt. 
f4-^ Recruitment 

(a) P^equiromont. Thoro must be a planned 
aft4 orgaruz e d recruiting program, carri e d 
©«t ift a mann e r that assures open con 
sideration. 

fb^ Guid e . The recruiting program should 
be a» easily recognizabl e aft4 structured 
part ©f the staffing design fef the person 
Hei function. Ati ' . acancies should be 
conspicuously posted ift a regular location 
accessibl e to aft4 frequented by employ 
eesr ff efforts afe to be OKtended outsid e 
the organization, posting should als© ©e- 
ewf ift a prominently public location 
v i 'ithin the jurisdiction, aft4 further utUi 
zation ©f radio aft4 media advertis e ments, 
aft4 listing Vrith the Employment Security 
Commission should occur to broad e n 
communications. 

(e^ P<.equiroment. Special emphasis wiU be 
placed ©ft efforts to attract minonties, 
women, the handicapped, ©f oth e r groups 
that afe substantially underropres e nt e d ift 
the jurisdiction Viork forc e to heip assure 
they wili be among the candidates from 
' i >hom appomtments afe mad e . 

(4^ Guide. The filling ©f vacancies from 
within the oxistiag work forc e should 
fairly consider aft4 encourage work e rs ©f 
thi>v group. Schools, commumty colleg e s, 
s e lectiv e media, interest groups, aft4 oth e r 
organieations basing special contacts with 
\s'om e n, minorities, handicapp e d. afi4 
older groups should be informed »f va- 
cancies ift order to particularly encourage 
potential apphcants from underrepr e 
sonted groups ift the work force. 
fi^ Sel e ction 

(a) Pi.equiroment. The selection ©^ apphcants 
fof vacant positions wiH be through open 
competition. iVdvantage will be given to 
applicants determined most qualilled aft4 
hiring authorities must reasonably docu 
ment hiring decisions to " l erify this ad- 
vantag e was granted aft4 explain their 
basis fof selection. 

(^ Guide. Selection from v . ithin is logical 
where there is need to further career de- 



id? 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



volopmont, afi4 tfee work force g e n e rally 
» adoquately representativ e ef alt raco, 
se*r ethnic a«4 dicadvantagod groups ef 
tbe labor force, fe many cases, rt- wtb be 
bonoficial te ooloct from a group ef both 
int e rnal aft4 oxtomal applicants. 

fe) Requirem e nt. Soloction procoduros wtM 
be job related afi4 wA be i» accord witb 
the Gtipulationo, validity, reliability, aft4 
objectivity &f tbe Uniform Guidelines e» 
Employee Selection Procoduroo 

(1978)(Fodoral). 

(4) Guid e 

(i^ There afe oovoral soloction approaches 
available. AH- should measure tbe impor 
taftt- oldllo, Icnowledgo, abilities, aad work 
behaviors needed fof a jebr Validated 
written tests, ass e ssm e nt c e nt e rs, struc 
turod intors'iows, aad supplemental self- 
aoooosment applications afe b e ing 
succooofuUy used. I low e ser, it- may weli 
be that {»«• »fte approach wiS be suitable 
fof ali jebs ef tbe jurisdictions. ¥be 
''content validity" portion ©f tbe Uniform 
Guidelines app e ars to offer tbe gr e at e st 
practical latitud e fof most jurisdictions. 
Ad e quat e jeb analysis should insur e tbe 
job rolatodnooo ef tbe approach(eo) cho 

(«) Thoro vs considerable leeway granted kt 
dotormining a managoablo number ef eb- 
giblos to refer to hiring authorities; hov i ' 
ever, provisions which ^i i ould result m 
random appointm e nt from an- entir e fet- 
ef e ligibl e s, with disregard fof relative 
abilities, Icnowl e dge, afi4 sldlls, would BOt- 
moot tbe r e quir e m e nt. Advantage should 

(e) R e quir e m e nt. Job related minimum fe- 
quir e m e nts fop e ntranc e to » class wiii be 
estabhohod wh e n e ver practical, 3*4 wib 
be f»et by ab candidates examined, ap- 
pKjint e d e* promoted. 

{^ Guid e . Program diroctoro should be re- 
cognb.od as a valuable r e source, afi4 used 
advantageously m determining minimuH % 
roquiromonts. Regular minimum Fe- 
quiremonts sg^ comp e titive proooduros 
may be ^s'oi' .' od ef limited to permit tbe 
hirmg ei handicapped persons wbo have 
physical »f m e ntal impairme ftt substan 
tially limitmg a major bfe activity. Mini 
mum quahfioations aft4 duties may ako 
be modified to permit train oos. 

fg) Requirement. Prior to receising a pep- 
manont appointment e ach e m ploy oo wib 
satisfactorily complete a reasonable, time 
limited probationan' period. 



(b) Guide. A probationary ti«%e limit of less 
than thro e months would qu e stionably 
give Dupervioors enough tim e to fairly as- 
sess Hew employees, while a period ift e?t- 
eess &f e«e yeaf could be questionably 
lengthy. Tbe omployoos perform anco 
should be oloGoly ro' . iewod during tbe 
probationar>^ period aft4 positive feedback 
given by supoP i dsors ©» both accomplish 

success is encouraged. 
(^ Career Advancement 

(a) Requirement. Policies afi4 program s^ 
focting aft4 e ff e cting promotions wiH- con 
sidor aU ehgibl e omployoos ' ■ ' ■ ithin tbe 
jurisdiction aft4 adequat e ly assure tba* ali 
persons promot e d afe qualifiod. 

(b^ Guide. Internal career paths aft4 ad- 
vancemont need to be conscientiously at- 
tendod. Persons may be advantageously 
r e cruit e d from outside tbe organigation 
through op e n competition wh e r e tbis v41i 
provid e abihtios Hot- a^ i ^ailablo int e rnally, 
tbe organiaation wib be e nrich e d, »f ep- 
portunitioD fe* underrepreoontod groups 
wiH- be improved. 

Statutory Authority G.S. 126-1 1. 

.1406 \1ERIT PRINCIPLE II: 

CLASSIFICATION: COMPENS.ATION 

General Requirement. A current, equitable, 
aft4 adequate position classification aH4 com 
ponsation plan wiH be provided. 
f44 Position Classification 
(ft) Pvoquiromont. Job Evaluation (synonym 
- classification) plans wtH be based upon 
a soundly appHod, professionally accepted 
job evaluation methodology V i 'hioh estab 
lishos tbe rolati' i 'o strength of related posi- 
tions through consideration of tbe 
difTioulty, responsibility, aH4 other fe- 
quir e m e nts »f tbe work. System compo 
n e nts aft4 ab r e lationships dotorminod 
along w4tb accompanying rationale will 
be fully documented. 

(b) Guide. 

(1) Tbe job analysis process should be eaf- 
Fie4 ©«t- so tbat- it- is equitably consistent 
m aU apphcations. Job analysis, factors 
' I ' i 'hich no mi ally should be includ e d ift ad- 
dition to difficulty aH4 r e sponsibility, afe 
worldng relationships aft4 worlcing condi 
tions. Physical effort aftd other consider 
ations of importanco to employees aft4 
managers (and- or required to id e ntify aft4 
measure tbe work) msf nood to be added 
fbf gi' i' On job typos. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



268 



PROPOSED RULES 



fii) ¥b# rational e fef class (oynonyms - &ktU 
lovol. >V ' -ork lovL'l. e tc.) rolationshipc . 
should be documontod ift dot ail sufTiciont 
te- rooonstruct A« R ' asoniny. eft Ae basis 
ef A# j*4» L ' ^aluation factors, which le4 to 
a logical analuical conclusion. Such 
documontation should ake h» constructod 
te- s g p ie t4*<* purpose &f guiding futuro sr- 
alytical olTorts. 
fiii^ Curront organii'ational charts, position 
doscription fdos, class history fjcs, afi4 
rtjlatijd infomiation noods te b# main 
tainod to awi je^ analysis. 
f2) Compensation 

(a) R. e quiromL ' nt. ¥h* comp e nsation pteft 
Vi4iiT within labor markot constraints, havo 
as ite principal basis tfee class rolation&hips 
(synonyms - sfeH k'sel rolationshipo, job 
relationships, work k*vel- relationship, eto^ 
discerned by the classiTication process. 

fb4 RequLremont. W'itliin the limits ©f local 
fmancial ability aft4 hscal poUoy, the lovol 
ef compensation assign e d to each class el 
the f4aft v4Ht ift conjunction ¥r4th Pi.ule 
. M( l 6(2j(c)(m)(B) »t~ th» Section. a4e- 
quatoly take iftto consideration the com 
petitivQ labor markot within the 
geographical afea t4~ recruitment. 

fe) Guido 

(if WTiero classes have boon dotorminod by- 
the classification process to be signif 
iccmtly related ift t e rms el 
recruitment labor mark e t requirements ef 
' ■ ' ■ ork r e ciuirements. the componsation Fe- 
lationships botv i oon related classes should 
reflect vertical aftd horizontal relationships 
suggested by the classification analysis. 
Exceptions should occur only ia those 
areas ' I ' l horo statutoP i ' ef organizational 
codings fof appointed Bf elected officials, 
as aft expression ef fiscal policy, aet to 
compress logical pay relationships at gi' i on 
le' i els. Bf v i horo other circumstances might 
dictate reasonable compromis e as nec e s 
safy to a^ i oid disproportionate damage to 
the overall integrity el the classification 
afni pay plan. 
(tt4 Comprehensive solan' suneys should 
be conducted at least annually to gather 
4ata eft rates being pai4 fe* substantially 
similar V i ork by competitors. Such stH^ 
veys need to be designed with the ee- 
o graphical afea el recRiitmont » mind. 
Willie clerical employees aft4 some 
paraprofossional employees afe rcx^ruitod 
locally, tt is usually nocossar^r to r e cruit 
rogionallv. statewide ef even nationall' i ' lef 



oth e r paraprofoGsional and many profos 
sional aft4 managerial positions. 
{mj U should h» r e cognized that the p^ 
poUcy el the jurisdiction is ultimately f«- 
presont e d by the position classification 
afi4 salary plans. Tliis pay pohcy must 
establish afi4 maintain, insofar as foasiblo, 
a system el compensation which pro' i ideo 
a liabl e basis fof security aft4 maintain 
iftg a sufficient effocti> e wefk- forco from 
the labor mark e t. -Pay policy is estab 
fish e d aft4 maintain od through assessment 
aH4 roconcihation el s e v e ral influencing 
factors. >' . hich Htsf frequently rolato as 

factors include: 

(Af relationships among positions, as es- 

tabhshed through the proc e ss el jeb 

evaluation: 
(-84 e xt e rnal labor markot dynamics, ift 

terms el wag e s afi4 Lialary rated, appli 

eaftt sources, availability afi4 supply; 
{G^ the jurisdiction's abiUty to pay aft4 

complete i» terms el oconomio condi 

tions aft4 allocat e d fmancial r e sources 

fef salaries aft4 benefits: 
f^ "pubho policy" as defined by the 

governing board; aft4 
f&f criticalnoso el op e rations. 
(4f Requirement. Loacal aft4 equitable 
practic e s will be e stablish e d which guido 
salary administration ift position aft4 em- 
ployoo actions within the juriLxliotion. 
(ef Guid e . Pohcios guiding salary adminis 
tration fef individual employees ift salary 
range revisions, reclassification upward ef 
downi i i i ard. appointments, promotions, 
transfers, demotions, suspensions, ef Fe- 
lated actions should show foif aft4 fea- 
sonable concern fof the natur e el the 
actions they cover, smti reflect consider 
ation el both omplo yeo aft4 managerial 
interests. Interpreti' .'e consist e ncy should 

\^'\j CTTT i„' I. ' i\-- ^- 1 1 ' \- or ' 



Statutoiy Authority G.S. I26-I I. 

.1407 MKRIT PRINCIPLE III: TRAINING 

faf General Requirement. Hmployeos will be 
triiinod as needed to assure high quality pe?- 
formanco. 

(-b) Guide. Ift addition to providing training 
to improve poribrmance. training should be pfe- 
i i idod to prepare employees fef more responsible 
assignments afi4 to implement alfumativ e action 
plans fof equal employment opportunity. 
Training programs should includ e systematic 
m e thods fe? assessing training noods, pro^idmg 



269 



:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



training te meat priority noods, o e l e cting porson 
Hel fof training, aft4 ovaluating tb» training pte- 
vidad. 

Authority G.S. 126-11; Federal Standards for a 
Merit System of Personnel Administration. 

.1408 MERIT PRINCIPLE IV 

Gonoral Roquiromont. Employooo wtH- h% con 
tinuod m good standing as leeg as tfeey ouotain 
Gatiofactopy porformanc e . Attompto wJM- b# mado 
witfe omployooo te- improv e inadoquato perform 
anoo, afi4 provioiono ¥r4y be mad e fof ooparating 
omployooo whos e inadoquato performanc e eas- 
aet be corrootod. 
f4^ Employe e Perform anco 
fa) Pvoquiroment. Employees vAe- hav e ae- 
quirod perman e nt status wiH set- be 4is- 
charged, susp e nd e d, e* reduced m pay ef 
position except fof j«st- cause. 
ffe) Guide 

(i) j-ast- cause would normally be related te- 
a failing is work porformance ef personal 
conduct to tbe extent tbat- tbe terms aft4 
objectiv e s ef employment are unfulfill e d, 
&f p e rsonal behavior is detrimental te tbe 
imag e afi4 ■ ■ ' ■ 'orlung relationships e4^ tbe 
jurisdiction. ¥be degree aft4 land ©f dis- 
cipUnaxy action talcen noods te be based 
upon tbe sound aft4 wreli considerod 
judgment ef managem e nt. 
(ii) ■i'^© employ ee should be oubjoct te sep- 
aration ©f other disciplinary actions fof 
dic i cloouro, He4- prohibited by lawr ef vie- 
lations ©flaws »» rules ef other improper 
actions. Prohibitions aft4 protections 
against reprisals should be a sou red ena- 
ployeeo reporting wrongdoing ©f LnofTi 
cionoy. 
(«) Employees need to be evaluated peri 
odically ©» a oystomatic afi4 j©^ related 
basis to provide noodod information fof 
supop i iooro to ass e ss tbe adequacy ©f m- 
dividual employoo to recognia e th e ir osvn 
p e rformanc e improvement needs, aft4 as 
a basis fof personnel actions including 
promotion, recogniging ©f rosarding sa- 
perior portbrmanC ' O, aft4 corr e cting inade 
quate perform ance ©f ooparating 
employoos m cas e s where inadequate f»ef- 
formanco cannot be corrected. 
(e) Pi.equirement. Polici e s wi4i be d e v e lop e d 
V i hich provide fof foif aft4 uniform proc e 
duros fof demotion, transfer, suspension, 
©f dismissal ©f employees whoso pef- 

r e asonablo efforts have been mad e to 6©f- 
Feet itr Such policieo sbaH- spocifically 



provid e tfeat ia tbe ease ©f such discipli 
ftafy action, tbe employ ee will7 before tbe 
action is talcen, be given a otatoment ift 

" I I T. U I Cs m. I L LI 1 1. rTTTTTT CTT IIU.!!!!-*! H-TJJ t-Tl \J.\^ 1 M 11^ 

specific acts ©f omissions tiiat- are tbe fea- 
s©» fof tbe diociplinary action, aft4 tbe 
employee's app e al rights. A copy ©f tbis 
statem e nt shall be fiie4 witfe tbe county 
personnQl dirootor. 
(d) Guid e 

(i) Adequat e afi4 spocifio notice ©f unsatis 
faotor>^ porformance should be given to aft 
employee prior to disciplinary action s© 
as to offer reasonabl e opportunity fof 
corr e ction. Multiple warning ©f progres 
sive sev e rity afe recommended wher e m- 
adoquate porformance is sustained. This 
might includ e a specific ©fai warning from 
tbe supop i isor i» tbe fifst- instance, aft ©fal 
warning with spocifio foUow up letter to 
tbe employee ift tbe second, aft4 a fmal 
written ' I ' . aming with fati' luiov i iodge ©f tbe 
department head which might include a 
direct notice to tbe employee y»t a con 
tinuation ©f tbe practic e may result ift 
diomiooal. Each level ©f warning should 
be accompanied by ouggootions fof 6©f- 

r^^^T^CTTTW UI IT-1 II lU L. 1 1 1 L' 1 U T \J\J nTT^TTTlTT \J\J CJ f V-TTT 

aft opportunity to ^ve roaoono fof bis 
aetiono. 
(ii) Aft employ ee H»y- be ouspended witb- 
©ttt- ' I ' l aming fof causes related to personal 
conduct dotrimontal to county o e p i ic e , 
p e nding tfee giving ©f written r e asons, ift 
ord e r to avoid undue disruption ©f w©fk 
©f to protect tbe safety ©f persons ©f 
property, ©f fof other serious r e asons. 
f3) Reduction fe Eorc e 

(a) Requirement. Retention ©f employoos i» 
selected separations 4«e to curtailment ©f 
work ©f lack ©f funds wiiJ- be based upon 
systematic consideration ©f tbe type ©f 
appointment aft4 oth e r relevant factors, 
such as poribrmanc e appraisals, ' i shich 
consider employee contribution. 

(b) Guide 

(4) tv© pormanont employee ©f good stand 

force wbiie ther e are emergency, int e rmit 
tent, temporary, probationary ' ', ©f trainee 
employoos oor . ing ift tbe sam e class i» tbe 
jurisdiction, unless tbe permanent ess- 
ployoo is ft©t- ' I ' . 'illing to transf e r to tbe p©- 
oition bel4 by tbe non status employoo. 
(ft) 1ft addition to type ©f appointmont, 
other important aft4 relevant factors 
which ohould be unifomily conoidored afe 
length ©f sonic e aft4 relative officionoy. 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



270 



PROPOSED RULES 



(4iH J*- » dL": . irabl e te provid e reiri j jtat e mont 
right ' j within a r . p e cifio tim g p e riod te wh- 
ployooc i ooparatL ' d 4«« *«• roduction ift 
forc i j. 
(4) i\pp e al& 
fa4 R, e quirem !* nt. 

(4^ G t» n e rully. » A» ev^wt &f disciplinapy 
action, ouoponoion, afi4 di ' jmiscal. Ae 
county Vritt pro' . idQ permanent omployooG 
with tfe* nght te appeal through a timely 
aft4 impartial procooc i . i^ r e sults ej >vhioh 

upon tbe appointing authority. 44*e 
gri e vanc e procedurB fihall ak«- eve acceoG 
te- employooo with non disciplinany giov 
anc e c . which d» Hot- in' . olse issues »f ifi- 
herent managemont perogativo, ouch as 
budg e ts, hours aft4 conditions »f work. 
iVppeals Bi alleged discnmination ift afw 
personnel action ©«• tfee basis ©f raco, 
color, r e ligion, se*r national origin, poU 
tieaJ- afhliation, age^ »f handicap hf afty 
applicant ef employee wtJi result ia 
tunely. onforceublo d e cisions. 

/ < « 1 I Va -^ ■" -^ 1 I «- r^ 1 T-n T-. ■! r-t i -^i 1 i t \ .- t V-> . ^ !-• /~\ 1 t r~t ^ t r t-» .-v --i «-/-J 

^11/ IV.' U. J ^' U 1 \_' iJ 1 1 1 'Lll L ILJ. LI I T . 1 1 1^, L-T^F Ul 1 1 T C'^'li.l VI 

»f commissioners Vr+H- create a county 
personnel commission, which among 
other areas oi responsibility m^ authority^ 

♦ ►•» ■ I t r-t^ ■"» t ' la^ --I ■- . < 1 <-n .-1 j-i T 1 ■! 1 I \-\ ."t -"1 T- o r-\ ^ 1 ^ /-■ .~. . ,"i .--t 

TTTTTT rT ITJ T I. '\J U. J .^1 1 ! 1 1 l,'13T * * I I I rTCTTr Ltl iU. Ul,T_ iU^J 

att appeals. ?4te authonty t4~ tite county 
porsonnol commission fof e ffecting it* de- 
cisions shall be ift accord;mce with Ae 
provisions »f R«}e . 1 10>^ . (b)( 1) ef tfe* 
Section. The membership ©f Ae com 
mission w41i consist »f p e rsons appointed 
by Ae board »f county commissioners 
with d«e r e gard t» ite nature aft4 purpoi . o, 
with the stipulation that- at least ©fte 
mombor be chosen to r e pr e s e nt A© efH- 
ployoos »f the county. Such appoint 
monto w4ii ftot include the county 
manager, county attorney, incumb e nt 
county commissioners, department h e ads, 
e* their family members »f rolati' i oo. 

(»+ Tfee county porsonnol commission w44i 
have access ift tt* mootmgs aft4 deliber 
ations. te- the counsel ef a private attor 
Hevr net- associated ef engaged 
professionally m aay transaction ef the 
county. 

fHrH ¥fee county p e rsonnel commission wtit 
have the power te I' ubpoena witnesC ' Os, 
pnncipals. ef other partus relevant te a 
foif aft4 obiecti< i e pursuit ef aft equitable 
d e cision. 

fv4 Proceedings before the commission shall 
be recorded. At its discretion, the com 
mission ft»y furnish a transcript ef the 



recording ef a copy ef the recording upon 
request . Dociaionc ef the commission 
shaU be ift writing ^pi4 maintained by the 
Commis '. ion. 

ha* a* it* objeotivo the timely aft4 logic - al 
r e solutions ef sA grievances at the lowest 
practical point ift the organisation shall 
be establish e d, with right ef appeal as- 

i~t\ rr-i M r-t t L-t •-. J-- V-i i~t i-tr^ 1 1 »-t t f~i t 1-1 .-1 .-■ I A 1 1 rt t 1 : »-■ ^«- 
JLll L,T_l CTT V- U <- 1 1 rrC^TT ITTT rTT L 1 IC *_ L' U i 1 1 f y ' V,T 

sonnol commission. Te the maximum 
e xtent possible, grievance procedures wtlf 
include stops te roDolvo discrimination a»d 
aif oth e r typos ef e mploy ee gries'ancoo 
without recourse te the formal app e als 
proc e ss reprosontod by the county pet^ 
sonnol commission. 
(fe) Guide 

f+f Assuranc e s should be provided which 
aUow employees te pres e nt their problems 
ef gri e vanc e s ift accordance with the pf©- 
cedures pro' . 'id e d by the county, free from 
interferences, coercion, r e straint, discrimi 
nation, ef reprisal. AH employees should 
be fuUy informed ef the grievance proce 
dures adopt e d aft4 ef thoir rights aft4 eb- 
ligations thereby. 

(ft) The composition ef the county person 
Hef commission might draw upon com 
m unity resources » a nature consistent 
with its purpos e . P e rsons s e l e ct e d from 
business ef industry who ate e ngaged ift 
the current practic e ef personnel adminis 
t ration, instructors ef public adminis 
tration from institutions ef high e r 
learning. aft4 persons whose professional 
onentation would lend objecti' i e under 
standmg ef employee concerns would be 
e xampl e s i» keeping with tfa* purpose. 
Membership ai*e needs te be e nhanced 
by minority aft4 female repres e ntation. 

(4iH fft the mterest ef avoidmg stipulations 
which would work te curtail the employ 
ee-s opportunity te present hi* ' l orsion ef 
the circumstanc e s aft4 e v e nts surrounding 
a grie' . anc e . it is suggested that the Rules 
ef P' l 'identiapy Presentation be us e d only 
if requested by the employee. f» the ab- 
sence ef such request, the commission's 
evident laPf rulings should be effected ift a 
manner favoring fett disclosure ef ah pef^ 
tinont facts. 

fiv+ The commission should have ^ it* 
disposed, means fef enablmg reasonable 
witness expenses te be reimbursed a* ap- 
propriat e . 

fv^ The relationship between the county 
personnel commission aft4 the etvif court 



271 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



PROPOSED RULES 



oyntom as te pow e rs, authority, aft4 l e gal 
exp e ctation should b» e xplain e d atwi ekf- 
ifte4 te aggriosod persona appealing te tfee 
commission. 

Statutory Authority G.S. 126-11. 

.1409 MERIT PRINCIPLE V 

Gonoral Roquiromont. feif treatment &f appli 

\J\3.\.T\~ UJ. lU L, 1 1 T !_' 1 \-f T l-^^ J ?* l_i_i CTU U J LI ITI \,TJ I_I I CTTT CTTTprCCTTT 

ef personn e l administration without r e gard %%■ 
raoo, color, religion, se*7 national origin, political 
aftiliation, ag»7 ef handicap aft4 witfe proper re- 
gaf4 fo* their privacy aft4 constitutional rights as 
citizens. This "fair treatment" principle includes 
compUanco Vrith- the federal equal employment 
opportunity aft4 nondiscrimination laws. 
(4)- F.qual Fmploymont Opportunity 
(»)• Requirement. Fqual employment oppor 

tunity vriH he assured fof aU- persons. 
fh) Guid e 

fi^ Provisions ©f the personnel system 
should assure ttet Be- individual is de- 
p rived, »f otherwise discriminated against, 
with respect te- consideration fof e mploy 
ment. compensation, a«4 ali oth e r terms, 
conditions, &f privileges ef employment. 
(h^ Equal opportunity applies te- every^ '»- 
dividual afl4 does aet- moan preferential 
tr e atm e nt, unless e.xceptional remedies afe 
n e c e ssary to correct the efFoots »f 
discriminatory practices. 
fe) P^equiroment. Proliibitions against dts- 
crimination consistent with the Civil 
Rights A*?t- ef 1961 as amended, the Hqual 
Pay Aet ef 196,1, the Age Discrimination 
m Employment Act ef 1967 as amended, 
the Rehabilitation At4 ef +970- as 
amended, aft4 other relevant statutes w+H 
he established aft4 enforced. 
(4) PvequLToment. Retaliation against those 
¥rh» protest alleged discrimination shali 
he prohibited. 
Affirmative Action 



(a) 



P^^ e quiroment. ¥he governing body wili 
adopt a written EEO/i\j\ policy svhich 
cl e arly outlines the governing body's ifi- 

H- I 1 1. , LIVHTJITLT III lU I^X-'lllI Illllll^lll 111 I ^^ SI^Ul U. l\J 

EEQ afhd AAt Tlus poUcy statem e nt shall 
e nsure greater utilization »f aW persons hy 
id e ntifying previously und e rutiliz e d 
groups ift the work force, such as women, 
minorities aftd the handicapped, siPi^ 
making special efforts toward their 
recruitment, s e l e ction, appointment. f*fe- 
motion, development a«4 upvsard mobil 

it¥r 



(fe) Guid e . The h e ad »f the go' i eming body, 
(the chairman ef the county commission 
efs^T should si^ the policy statement, 
copi e s »f which should he disseminated 
intemtdly aft4 ext e rnally. 

(e) Requirement. 54*e jurisdiction shall de- 
velop aft4 implement a continuing pro 
gram ©f affLrmativo action i» order te 
assur e thrtt ali personnel policies aft4 
practices relevant t& total e mploym e nt ift 
the jurisdiction wtli guarantee equal ©p- 
portunity fof aU persons. Also, sufficient 
resources should he d e vot e d t©- ad e quat e ly 
implement a» affirmativ e action program. 
The program should include: 

barri e rs te- e qual employment opportu 

fit^ Work forc e analysis t© determino 
whether percentages »f minorities afi4 
women employed ifi- various j»fe cat ego 
Fies afe substantiaUy similar t& percentages 
ef those groups availabl e m the relevant 
labor force. Wher e underr e presentation 
oocurs, employm e nt procedures Vi4}i he 
analyzed t© determin e the caus e . 

(iii} Developm e nt ©f a systematic action 
plan, with goals aft4 timetables, fonnu 
lated t© corr e ct aay substantial disparities 
©f other problems identified m the work 
force aft4 employment analysis. 

fiv^ Periodic evaluation ©f results t© assess 
the effectiveness of the affirmative action 
programs ift achieving affirmativ' e action 
goals ©ft a timely basis. Th e affirmativ e 
action f4aft should he updated at least ev^ 
ef¥ tw© years. 
(4) Guid e 

(i) Aft EEO ' AA officer should he d e sig 
nated fof the jurisdiction who shall hav e 
primary^ responsibilities fof the impl e 
mentation aft4 day t© day- operation ©f the 
affirmative action program. 

(ft) Work force data eaft most meaningfully 
he obtain e d aftd presented hy joh cate 
gory. Federal f©h categones, used i» 
submitting EEQ 1 reports, afe suggested. 
The primary sourc e fof labor forc e data k* 
North Carolina is the N.C. Employment 
Security Commission, it should he feaJ- 
W!^ that labor force data from several 
different labor mark e t areas (goograph 
ioally) may he needed t© measure 
progress, sinc e the junsdiction likely fe- 
cruits ©ft that basis fof diff e r e nt types aft4 
levels ©f jobs. 

iVgency work force analysis a«4 problem 
identification normalhi ' needs t© he based 



^ 



:3 NORTH CAROLINA REGISTER May 1, 1992 



272 



PROPOSED RULES 



fkft t+t# percontago e4 qualifi^ p ^ rsonf . ^p^ 

T-- ■ . '. . .- . i -L- ^^ «^ / ' ■ if Vi f< 1 A-- r rf/\ 1 1 r~\ -^i \ ■ ■ i i 1 --^ Wl £H t^i fr^^ 
1 UL. L . I3T_ ,T , (XI lU CTTTTTT^ i~i ^.' LI L' U T LLLIU (,■ 1^' 111 1 1 IL-' 

rolo' i ant labor force. Whoro thor i o date afe 
ft«+ uvcuIuMl', total labor Forc « H»y b^ 
U ' jl ' J. W ork lorco analv '^ io should ^ve 
att e ntion te individual job clafjr . irication. 
cla ' j ' . ' ification aoriQa. »f occupational 
groupings ae appropriate. 

(4j Roquirement. Managomont aft4 ouponi 
*efv porcormol mui . t be hM accountablo 
fe* progrosf i toward alTirmativo action 
goak . » appropnatj circum '. tancco. 

fg+ Guido. A- mechanism fof re' , io' i s ing each 
manager's Hftri- ©1^ ri": . ponC ' ibility aft4 oach 
f . upL'P i i ' jor'o unit, te- diLiCO' i or whether 
progr e r . s toward imprc i od repr e r ^ ntation 
ef e>fte »f more protected groupr . needs to 
br:^ made, afidr tf ^e^ 4 ' juch progress » i» 
fot+ being made, must b* implemented. 
•b-w* Bi annual performanc e rdiows fof 
tbi* purpooo k acceptable. 
(4^ Employeo Relations 

(&)■ R.equirement. Personnel administration 
v i ithin tbe jun 'i diction wtli conscientiously 
recognize tbe dignity afi4 ' . aluo &f tbe ifi- 
dhidual employ ee aft4 promote means ©f 
communications. participation and 
understanding among ai4 employees. 

(-b+ Guide. Provisions aft4 strategies vi i ithin 
tbe personnel system should ^eefc te- e ffect 
mutual understanding, participation, sm4 
accord between management afl4 em- 
ployees ift achie' i ing tbe oi i erall mission 
ef t4i# county. When, f©f V i hatever wa- 
sons. there i»a¥ occur » breach ©f under 
standing i» asy area, efforts fe* 
empathetic resolution should be imme 
diutei; . effected. 

Stanaoty Authority G.S. 126-1 1 . 

.1410 \IFRIT PRINCIPLE \l: POLITIC.\L 
\C\\\\V\ 

kH General Requirement. Employees Vi4ii be 
protected against coercion fof partisan political 
purpose '. , ttftd w-tii be prohibited from U '. ing th e ir 
ol't'icial authonty fof tbe purj^ose ei interfermg 
W ' ith ©f affect mg (4*e re ' ailt ©^ aft election ©f a 
nomination fof office. 

fb-^ Cjuide. Policies ©«• political activity need 
t© assure tba* aH- employees ha' i e Ae nght !+>• e*- 
pres 'i their v lews a^ citb'.ens. t© pur '. ue their legit 
imate m' l ol' . ement i» Ae political system. aH4 to 
vote; ibat- employees »©*■ engage ift ©f be subject 
te- coercion fof political purpos e s. »ft4 ft©t ^eeir 
Ci,mdidacy fof public office » a partis^in el e ction. 



Authority G.S. 126-11: Federal Standards for a 
Merit System of Personnel Administration. 

.141 1 PROCEDURE FOR SUBMISSION 

rVt- such tim e tfeat a county bi^ developed a» 
ov e rall syst e m ©f personnel adminis . tration ©f a 
portion ©f such system ' . vhich » fok- te- me e t tbe 
stipulations w+ forth herein, aft4 wish e s te p e ti 
tfoft tbe Stat e Personn e l Commission fo* a de- 
legation ©f authority t© administ e r such system 
autonomou -i ly . tfee olTicial r e qu e st w4ii includ e : 
f4-f Requirement. 
far^ ?^ board ©f county commissioners wtH 
by- resolution mak e known ite desire fof a 
delegation ©f authonty t© op e rat e aft a«- 
tonomouG sys . tom ©f personn e l adminis 
tration. ©f portion ©I a sys . tem. aft4 w4ii 
certify tbat- tbe syst e m ©f portion being 
offered ie viewed t© be suhstanticdly^ 
equivalent to Aat- ©f^ tbe S ' tato regarding 
local employees subj e ct t© Ae Stat e Pef- 
sonnel A^+r afi4 vv+U- be maintained ift Aat- 
manner. 
<-b-)- Ail- documents , affo dlu '. trations nocessapy 
t© fully relat e the rationale affo substance 
©f fbe personn e l system ©f system portion 
being offered must be included. 
fe^ Aft organizational chart aft4 such support 
narratis e neoos . sar . to foUv represent the 
^4aff complement aft4 s e parat e functional 
responsibiliti e s ©f att indi' i iduals assigned 
to administer aft4 maintain the personn e l 
svstem ©f sv s . lem portion w+H be included. 
(4f Provisions aft4 strategies w hich w^ assur e 
tfee continued curr e ncy aft4 responsiv e 
n e ss ©f Ae personnel system ©f system 
portion w^ be generally detailed, either 
by excerpts ©f additional documentation. 
(e-^ ibe OS e rail submi ^. sion should be to tbe 
Stat e Personn e l Director. OtTic e ©f State 
Personnel, Att^ I ocal Goi i emment Co or 
dinator. 
f-if (juid e . 4-be I ocal Governm e nt Coordina 
tof ¥r41- coordinat e t+>e overall ?r+aff rciew 
©f fbe proposed system ©f syst e m portion 
v . ithm the Office ©4^ Stat e Personnel poor to 
a recommendation to the State Personnel 
Commission fof fifKti action. Staff' review' 
by tbe OlTice ©f^ State Per '. onnel vvtH- be 
pursued ¥rrtfe a clo '. ely cooperative aft4 ift- 
formal relations . hip w^^ tbe submitting j«- 
ri '. diction a^ nece" . aPi- to fotty understand 
aft4 explor e Ae suh .. tance ©f tbe system ©f 
portion being offered, a^^ to provide assist 
ance a* appropnat e . fttt. re'ciew w4U have 
a^ it^ purpos e Ae following considerations: 
fo+ fte re '. olv e imd commitment ©f tbe go' . ' 
emin ' -! bodv. 



273 



NORTH CAROLINA RECLSTER .May I, 1992 



PROPOSED RULES 



(t4 ¥be osoraU oxtont te ' ■ shioh tb« proposed 
personn e l C f yotom. e* svf ' t e m portion may 
h% roviowod »« "oubL . tantially oquis'alont" 
ift concopt aft4 oubotanoo te Adt- &f tfe# 
stat e fof local omployooo oubjoot te Uw 
Stato Porr f Onnel A^?t7 ** rc»prL"jontL'il by tbe 

fe^ H*e statTing ef tbe porr . onnol function as 
it rolatoo to tbe capability »f A<* juriodic 
t+»ft te ouccossfully administ e r aft4 main 
tetft tbe system »f portion propoood. 

fd^ ¥k« adequacy »f provisions afl4 strategi e s 
which Vr4U- assur e the continued currency 
aft4 roiiponsivonoss ©f aft indis'idual p©f- 
tieft »f several portions ef the overall sys- 

{%) Other factors aft4 considerations that 
miulit hav e a strong direct Bf indirect 
bearing »» the jurisdiction's success m f»- 
suring the efficacy ©f the proposed system 
Bf syst e m portion. 

Authority G.S. 126-11: Federal Standards for a 
Merit System of Personnel Administration. 

.1412 AREAS NOT COVKRED BY THE 
DELEGATION AGREEMENT 

Coverage. 

f+-^ Requirement. fVuthority fof final dotermi 
nation ei the applicability »f the State Pei^ 
nonnol Act, aft4 thereby these requirements, 

te- be vested vet the Offic e el State Personnel. 
{¥f Guide. Applicability t* primarily contin 
geftt upon the limits et contractural agree 
ments enabling the designated federal s^fiA 
state grant in aid te- local gov e rnm e nt, the 
basic details ef which afe set forth in- the 
Stat e Personnel iVct. Questions ef coverage 
should he addressed te- the I ncal Ciov e m 
m e nt Coordinator. Offic e ef the State Pet^ 
sonnel. 

Authority G.S. 126-11; Federal Standards for a 
Merit System of Personnel Administration. 

.1413 ONGOING CONDITIONS OK THE 
DELEGATION AGREEMEN I 

fa) System R e vi e w. Subsequent te a doleg 
ation e+" authonty by the State Personnel Com 
mission fop »» autonomous local personnel 
system, ef s\ stem portion, such '. ^stem ef f^^f- 
t«*» vr*W he 'l Ubject te- review annuiilly by the 
Office ef State Per ;. onnel. M at afty t+«e it j* 
d e termined that the sy . tem t^ se Umger substan 
tially equi' i alent. the delegation agr e ement will 
be rescinded. 



(h) Records aft4 Reports. Appropriate fvif- 
sonnol records Vr411 be maintain e d to assure the 
proper administration »f the personnel syst e m 
portion. Periodic reports, upon reque f. t, will be 
prepared fof the Offico ef State Personnel a* H»y 
be necessary to effect the information flew pe- 
quir e d to stay abreast ef local op e rations. 

(^ Records Privacy. Appropriate access aft4 
privil e g e s fef employees »ft4 appropriate limita 
tions fof oth e r p e rsons r e garding the storage, 
utilii^ation aft4 disclosur e ef personnel r e cords 

t'Vtit t*V J !.i y LI 1 Ctj tlOt^.f 1 U 1 1 1 w cTT tTTi? 1 .' I \9 ^ It'lUIly \j I rrrt? 

Records Privacy A6t (N.C.G.S. 153A 98). 
(4) Recertification ef the agreement by the 
board ef county commis ' iionors to maintain a 
system Bf portion ef » system ef personnel ad- 
ministration m accordance with these r e quire 
ments will be necessary from time to tim e ift the 
following instances: 

(-1) Upon significant change ift- the member 

shif> ef the board ef commisr . ioners. 
(^ Upon passage ef significant new legislation 
ef policy which w+11 apply to the local 
system ef syst e m portion. 
f^ Upon major r e organisation ef restructur 

(e) buture Stipulations. Chang e s ef additions 
to the local personn e l syst e m, ef system portion, 
will be necessary from tiin e to tim e to reestablish 
substantial equival e ncy h* regard to significant 
Ftew personnel l e gislation ef policy which ff»ay 
come to pertain to a M e rit System ef I'ersonn e l 
i\dministration. 

Statutory Authority G.S. 1 26- 11. 

SECTION .1500 - EORMS 

.1501 FORM PD-107 

faf iXppliciition fef t'lnploym e nt. this fonn 
i* completed by all interested applicants applying 
fef employment. It may be submitt e d to the 

I irl « ,'/-! /-» t V ♦■■*.» 1 J. »«-.- f-« «-i «"t .it f-i r .'««-■>.'••« 1 1 ■ t I \ ♦ 1-t . t '1 .-i.-it-i i~-\ ,- 

having the " l acancy. 

ef Stat e I'ersonnel. +44 W'er i t Jone^ . Street, Ad- 
ministration Building, Raleigh, North Carolina 
27603. 
fe} 44+e inibnnation requested eft th» form ift- 
dudes biographical infomiation. 44te education 
aft4 experience should be account e d fef m d e tail, 
especially items having a beanng upon the posi 
t+eft fef svhich the person t* appKing. 4-he ap- 
plication must bear the signature ef the applicant 
c e rtifying the infomiat i on to be accurat e to the 
be^ ef h» ef hef knowledge. 

Statutory Authority G.S. 126-4. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



274 



PROPOSED RULES 



.1502 FORM PD-I 

ft*-)- Rt-'quL". . t ft»f C e rtification. 'I'hi ' j form » 
■ ^uhmitt e il t» tfe» Qflic e Stat e IV ' r '. onnL ' l b^ a 
OQinpotiti' i Q Gonioo appointing authority te- b*- 
qiiLM . t CL ' rtification t*f L ' liijjbk' person! , fo t>e con 
■ jidL ' roJ frt* appointment te » ' ■ acant por . ition. 

(4*^ THl '-i l ' form;- , afe Rot- fumi ' jhL'J bv tkr* Offic e 
&f State I'eriionnul btrt we typ e iJ aft4 uubmitted 
by e ach agency. 

fe4 W» information requeotod includer i id e n 
tification t4 t4w po i ,iition i*ft4 type »f appointment 
aft4 c e rtification requoi . ted. 

Statutory Authority G.S. 126-4. 

.1503 KORMS PD-100 HR .AND PD-100 CD 

(^ p^>m^ I'D 10(1 W4t -North Carolina Qffiee 
ef State Peruonnol, P e rsonnel j\ction Form (Lo 
6«i Human R e pouroes Agonciei . )," i* t^ form 
tiwrt- muf i t t*e oubmitted te tiw Offic e ef Stat e 
I'err . onnijl l*y tht> locol human re '. Hurce; . agencies , 
fof roque 'i ting any per - jonnel actumr i 'l uch h^ new 
appointments, extension &f appomtm e nts. r e in 
statementr . . traniiforo ©f omployooi} within et be- 
tV i L'on local ag e nci e s, notices »f separation, 
promotionr . i*ft4 demotions, reallocation ' ; . , salaP i 
adjustment '. »ft4 merit incremontr . . 4-b*» e+vii 
preparedne '. s agencies twe a form Pf^ 100 G© fof 
ti*e same purpose. 

1^ 44w PD 100 Uft fevffffe may ^ obtained 
from efte »f f^ appropriate regicmal personnel 
offic e s: 

(-H ^^' e stem Regional Office 

Black Mountain. North Carctlina 2^ . 71 1 
f^ North C e ntral Regional (^tTice 
5^ Colis e um Dnse 
Win '. ton Salem. North Carolina 27106 
f^ South Central R e gional Office 

Wachovia l?(mk Building (Suit e ^ft^ 
^^^ Oreen Street 

ra>etleville. North Carolina 2830 1 
(-44 Ea 'i tem Regional (Office 
•W44 >;4.T i\ndrews Hiiv e 
Green' i iUe, North ('arolina 2783 I 
4-b^ PD 100 G44 tunn !. Fsay W obtain e d from 
i^ Office ©f Militap . - aft4 N'etorans .Vffairs: 
44^ West Jones Street 
Administration Ijuilding 
Raleigh. North Carolina 2^603 
f(r+ +4+e inionnation reque '. ted includes t4w 
present s . tatus and or requested status &f e«*- 
ployees, l e av e inionnation upon separation aH4 
authorb'ed '. ignatures . t4 approval. 

Statuton- Authority G.S. 126-4. 



.1504 FORM PD-119 HR 



f»4 Form PD 1 10 HRt notrfication &f "Chango 
i» Basic Salary Due to R.ange Rt e vision" ©f 
General County Incroaoo (Local Human Re- 
sourcos Agencies), vs a form used fof submitting 
changes ift salari e s 4tt» !©• a pay plan chango »f a 
range r e vision change fof a larg e number ©f effi- 
ployees. 

(4*) Ih e s e forms afe typed afi4 submitted by 
ea*4* }««4 agency. 

fe-^ Tb« information requested i* basically ^pt» 
same a^ k necessary ©» form PD 100 HR. 

Statutory Authority G.S. J 26-4. 

.1505 FORM PD-3 

(-af FomT PD 3, 'Certification »f Fmployoo fef 
P e rmanent Status h* Competitiv e Service," k, A» 
form tfeat- must b«* submitted te- Ae OITico ef 
Stat e Personnel fof requ e sting th«» change 84^ aft 
employee f t appointment from probationapy to 
permanent an>lime after three months satii i fac 
tofy '. eP i ic e im4 prior to Ai* eft4 ©f t4*^ ma.\imum 
nine months probationapy period. 

(+4 These forms afe typed aft4 submitted by 
each local agency. 

fej 4-4*? infonnation requested includes efft- 
ployee's name, classification aft4 effective 4ah* ©f 
pennanent status. 

Statutory Authority G.S. J 26-4. 

.1506 FORM PD-118 

fa^ Fomi PD 1 1>^ . , "Procedur e fof R e questing 
Position Action" ©f fe equivalent, i* f4*e basic 
fonn t4*rri- must be submitted to t4*# Office ©f 
Stat e P e rsonnel fe* reciuesting afty persoimol 
actions such a^ t4+e establi ' ihrn e nt. reallocation, 
transfer ©f abolishment ©f a position ©f 4©f 
changing codes evf subheiids. 

fb-)' 44^ forms may bi» obtained from t4^ OtTico 
©f State Per i. onnel, 44-6 W'es . t Jones . Street, A4- 
ministration Building, Raleigh. North Carolina 
27603 aft4 should b^ submitted » accordance 
Vrrt4* provisions ©+~ 44^*4,^ i NCAC J^ t4M447 
444U^ to .0105. 

fe) 44te information requested ©» tbe form ift- 
cludes: 

f4-)- request fof t4*e proposed action, 

(-^ rea '. oiT . ft+f t4*e request, 

(4} bLidget mformation. 

Statutory Authority G.S. 126-4. 

.1507 FORM PD-102 

fa4 44^ position description form (PD 102), 
©f rt-^ equivalent, i-r t4*e ba '. ic document f©f p*^?- 
viding inionnation ©ft individually covered posi 



275 



7:3 i\ORTH C.AROLIN.A REGISTER May 1, 1992 



PROPOSED RULES 



tions m f i tato a»4 local go^ommont. 
afe roquir e d fof ti» following: 



The forms 






ef a position, 
classification studi e s, 



dc ' tailod information eft afty position a& 
required hy- agency head ©f hi« ropreson 
tativo. 

fb) ¥be information roquootod ea the form ifi- 
cludos identification »f employ ee 's position, de- 
scription ef work aosignmonts, worldng 
conditions a«4 jeh roquiromonts, supor > isor'o 
statomont aft4 statem e nt &f the agency head ef 
authori/.od roprooontativo. 

(e) The FD 102 must he completed hy the 
employe e ift accordanc e with the detailed is- 
structions explained ift form PD 103, »f it* 
oquisalont. 

fd) The immediate supor^'isor aftd personnel 
officer ef agency head afe responsible fof the 
completeness aft4 accuracy ef the entries ift form 
PD 102. 

(e) Forms PD 102 aed PD 103 may he eh- 
tainod from the Offic e frf State Personnel, 444 
West Jones Street, Administrat i on Building. 
Raleigh. North Carolina 2761 1. 

Statutory Authority G.S. 126-4. 

.1508 FORM PD-103 

Fonn PD 103, e* it* equis'alent, "InstRictions 
fof Completing Position Descriptions," contains 
detailed instructions f&f the completion ef form 
PD 102. Form PD 103 ftw*t- he avea the efR- 
ployee when a form PD 102 is te- he completed. 

Statutory Authority G.S. 126-4. 

SECTION .1600 - PERSONNEL ADVISORY 
SERMCE TO LOCAL GO\ ERNMENT 

.1601 PERSONNEL ADVISORY SERVICE TO 
LOCAL GOVERNMENT 

The p e rsonnel ad> i isory senico te local gov e rn 
ment provides technical assistance t» local juris 
dictions &vef a range ef p e rsonnel related topics 
exclusive ef position classification aftd pay plans. 
Technical assistance includes h«t- is fte4 limited 
te personnel management program analysis, pef- 
sonnel policy development, labor r e lations train 
ift§T Taif 1 abor Standards Aet compliance, fring e 
benefit programs, design aftd implementation »f 
programs fof r e cruitment, manag e ment training, 
p e iformance appraisal, merit promotion aftd ai- 
firmati' i e action fof equal e mployment opportu 

Statutory Authority G.S. 126-/0. 
.1602 DESCRIPTION OF REQUEST FOR 



TECHNICAL ASSISTANCE 

A local jurisdiction requesting technical assist 
ance must submit a letter t» the personnel advi 
sefy service stating the natur e ef assistanc e 
desired aftd bearing a signature ©f a person with 
the authority t» commit the jurisdiction's funds 
te- f€ty the charges fof the services inv'olved i» 
rendering the t e chnical assistanc e r e quested. 

Statutory Authority G.S. J 26- 10. 

.1603 CHARGES 

fa^ Service charges wiii he based upon the fta- 
tttfe aft4 scope ef the work requested, aft4 the 
anticipated salap , '. travel, lodging, subsistence, 
printing, aft4 overhead coots necessary te com 
pl e t e ttr Aft individual proposal wiii he devol 
oped ift r e spons e te each project request. 

fh^ Transferable products de^'eloped te meet a 
general need, such a* personn e l pohcy models, 
record system models, jeh evaluation models, 
eterr wt& he offered at- a level the market wih boar. 

fe^ The total funds received from ah sources 
through charges wili net- exceed the actual opor 
ating costs ef the oen'ice program. 

Statutory Authority G.S. 126-10. 

SECTION .1700 - LOCAL GOVERNMENT 
EMPLOYMENT POLICIES 



.1701 APPLICABILITY 

State law (N.C.G.S. Chapter 



126, "The State 



Personnel Act") provides for the estabhshment 
of a system of personnel administration applica- 
ble to certain local employees paid entireh' or in 
part from federal funds. Focal governing boards 
are authonzed by G.S. 126 to establish personnel 
systems which will fulh comply with the appli- 
cable federal standards and then may remove 
such emploNees from the state system to their 
own SNStem. 

Statutory .Authority G.S. 126-1: 126-11. 

.1702 EMPLOYMENT OF RELATIVES 

(a) "Fhe employment of close relatives within 
the same department or work unit of a local 
go\emment agcnc\' subject to G.S. Chapter 126 
is to be avoided unless significant recruitment 
difficulties e.xist. If there are fewer than three 
other available eUables for a vacancN and it is 
necessary' for relatives to be considered for em- 
ploNment or if two individuals are aheadv em- 
plo\'ed and marrw the foUowing will apply; 

T wo members of an mimediate family shall 
not be employed within the same depart- 
ment or work unit of a local government 
agency subject to G.S. Chapter 126 if such 



7:i NORTH CAROLINA REGISTER May I, 1992 



276 



PROPOSED RULES 



cmplo\mcnt will result m one supervising a 
member of his immediate family or where 
one member occupies a position which has 
inlluence o\er the other s employment, pro- 
motion, salan,' administration and other re- 
lated manaizement or personnel 
considerations. 



(b) The term "immediate family" shall be un- 
derstood to refer to that deizree of closeness of 
relationship which wxmld sutztiest that problems 
miaht be created within the work unit or that the 
public s philosophy of fair play in providing 
equal opportunity' for employment to all quali- 
fied individuals would be \iolated. This would 
include wife, husband, mother, father, brother. 
sister, son. daimhter, grandmother, grandfather. 



the step, half and in-law relationships as appro- 
priate based on the aho\e listing. h includes 
others Ining within the same htuisehold or oth- 
erwise closely identified \Mth each other as to 
suggest dilliculty may deyelop. 

Staiuiory Authority G.S. 126-4. 

.1703 CONFLICTING FMPI.OVMENT 

No employee shall hold any office or ha\e other 
employment y\hich may contlict with his em- 
ployment in an agency which is subject to the 
State Personnel Act. Determination ot^ conflict 
shall be made bv the agency director. 



Statutory Authority G.S. 126-4. 

.1704 PERSONNEL RECORDS .AND REPORTS 

Such personnel records as are necessary for the 
proper administration of a personnel seryice sys- 
tem and related programs will be maintained. 
Periodic reports yvill be prepared as necessary to 
Indicate compliance with applicable state and lo- 
cal requirements and the lederal and state stand- 
ards: 
( 1 ) Personnel Records. L'ach agency shall 
maintain a service record for each employee 
including name, position title, organization 
unit, all changes in status, pertonnance 
evaluations and other infonnation consid- 



ered pertinent. 
(2) l^ayroll Records. An accurate copy of the 
payroll of each local social ser\ices. public 
health, mental health and civil preparedness 
unit shall be submitted to the agency, per- 
sonnel and or budget offices within two 

he 



weeks folloyy ing each payroll penod. 
payroll intonnation shall be used in revieyy 



mg contonnity by local units to establish 
rules and regulations 



Authority G.S. 126-4; I53A-98; Standards for a 
Merit System of Personnel .{dministration. 

SECTION .1800 - C7ENER.AL PROMS[ONS 



;:iT .1801 ALTHORITV FOR CL.ASSIFIC.ATION 

PLAN 

fal The State Personnel Director is authorized 

to allocate and reallocate indiyidual positions 

— consistent yyith the basic established classification 



and pay plan. 

(b) I he State Personnel Director is authorized 
to modify the classification plan for local gov- 



ernment positions subject \o_ Chapter 126 of the 
North Carolina General Statutes pending final 
appr oyal of the State Personnel Commission and 



grandson, and granddaughter. Also included are — 



the Cjovemor. 



Statutorv A uthority 

l26-5{ai. 



G.S. 126-3; 126-4(1 j; 



.1802 POLICY ON FSTABLISFIING MINIMUM 
QLAIIFICATION ST.ANDARDS 

(a) It shall be the policy of the state to establish 
job-related minimum qualification standards 
yvhereyer they are practical tor each class ot^ yy ork 
in the positu^n classification plan. 1 he standards 
will be based on the required skills, knoyvledges 
and abilities common to each classification. The 
qualification standards and job-related skills, 
knoyyledges and abilities shall serye as guides for 



the selection and placement of indiyiduals. 

(b) 1 he training and experience statements 
serve as indicators of the possession ot^ identical 
skills, knoyvledges and abilities and as guides t£ 
primary scmrces of recruitment; reasonable sub- 
stitutions of formal education and |ob-related 
e.xperience. one for the other, will be made. The 
State Personnel C oinmission recognizes that a 
specific quantity ot^ formal education or number 
of years experience does not ahvay s guarantee 
possession of tjie identified skills, knoyvledges and 
abilities for every position in a class. Qualifica- 



tions necessary to peribrm successlullv may be 
attained in a variety of combinations. Manage- 
ment is responsible tor determining specific ]ob- 
related qualifications that are an addition to 
minimum standards. .Management shall be re- 
sponsible for any adverse etYects resulting from 
the use of selection standards that ha\e not been 
established or approved bv the State Personnel 
Director. 



(c) 



I he State Personnel Director is authorized 



to modify training and expenence requirements 
for established cla--sitications consistent yyith this 
poHcv and to report such changes to the Bo.ird 

Statutoiy Authority G.S. 126-4. 



1/ / 



■::i ^ORTH C.A ROUS A REGISTER May 1, 1992 



PROPOSED RULES 



.1803 CLASSIFfCATION METHOD 

AJl positions are derined by the types and levels 
of work in\ol\ed and evaluated based on the ap- 
plication of accepted job analysis techniques and 
according to common job factors and the relative 
importance of the presence or absence of such 
job factors in the positions. 

Statutoiy Authority G.S. 126-4. 

.1804 ALLOCATION OF POSITIONS TO 
CLASSIFICATION PLAN 

Every covered position in local government 
shall be allocated to an appropriate class in the 
classirication plan. The allocation of a position 
is Its assignment to a class containing all posi- 
tions which are sulTiciently similar in duty as- 
signments to justify common treatment in 
selection, compensation and other employment 
processes. A class may consist of a single unique 
position or of many like positions. 

Statutory Authority G.S. 126-4. 

.1805 TENT.ATIVE AND FL.\T-R.ATE 

PRO\ ISIONS FOR TEMPORARY CLASS. 

The State Personnel Director is authorized to 



tract, select, and develop the human resources 
necessary' for present and future work. 

Statutory Authority G.S. J 26-4. 

.1902 POSTING .\ND ANNOLNCEMENT OF 
VACANCIES 

(a) Vacant positions to be filled will be publi- 
cized bv the agency ha\ing the \acancy to permit 
an open opportunity for all interested employees 
and applicants to apply. 

(b) Vacancies which will be filled from within 
the agencv workforce will be prominently posted 
in an area known to employees, and will be de- 
scnbed in an announcement which includes at 
minimum the title, salar\' range, key duties, 

in duty as^ knowledge and skill requirements, minimum 



establish temporary classifications with tentative 
pa\' grades or Hat -rate salaries when insufficient 
information is a\ailable to make permanent clas- 
sification and pay recommendations to the State 
Personnel Commission. When sufficient infor- 
mation is available, the Director will make a re^ 
commendation to 



Statutoiy Authority G.S. 126-4. 

.1806 NEW AND ADDITIONAL PERM.\NENT: 
FULL OR PART-TIME POSITIONS 

The duties of a budgeted position must be de- 
fined and the position must be assigned to an 
olticial classification in the salary plan. 

Statutoiy .Authority G.S. 126-4. 

SECTION .1900 - RECRUITMENT AND 
SELE(TION 

.1901 RECRUITMENT 

Local departments and agencies will meet their 
workforce needs through s\stcmatic recruitment 



training and experience standard, and contact 
person for each position to be filled. An excep- 
tion to this posting requirement will be permis- 
sible where a formal, pre-existing "understudy" 
arrangement has been established b\' manage- 



ment. 



(c) /Vnv vacancy for which an agency wishes to 

consider outside applicants or outside applicants 

concurrenth with the internal workforce shall be 

— fisted with the local Job Service Office of the 



the State Personnel 

Commission which will incorporate the tempo- 
rary class and pay into the pemianent classifica- 
tion plan and pay plan. Such temporar\ classes, 
tentati\e pav grades and flat-rate salanes shaU be 
administered according to aU applicable rules and 
regulations appro\ed by the State Personnel ^^^^^ 
Commission. 



limplovment Secunty Commission. I istings will 
include the appropnate announcement informa- 
tion and \'acancies so listed shall have an appli- 
cation period of not less than se\en wxork da\ s. 

(d) If an agency makes an effort to fill a va- 
cancy from within, and is unsuccessful, the listing 
with the l-mplovment Security Commission 
would take place when the decision is made to 
recruit outside. A vacanc\ which an agenc\ wiU 
not fill for an\ reason should not be listed; if 



conditions change, it should then be treated as a 



new N'acancv. 



Statutory .Authority G.S. 126-4. 

.1903 APPLICANT INFORMATION AND 
APPLICATION 

(a) The primary' source of public infonnation 
and referral for sacancies m subject local gov- 
ernment programs is the l-mplo\'ment Secuntv 
Commission. Interested persons ma\' contact 
their loc;d FSC Job Sen'ice Office. Other 
sources ma\ also be designated by local depart- 
ments and agencies. 

(b) Persons apphing for a local \acancv must 
complete and submit the official application form 
designated by the hinng authont\' and approsed 
by the re\'iewing state agency. |t is not necessary 
for local agencies to accept official application 
forms in the absence of an actual \acanc\' under 



and career support programs which identify, at- acti\'e recruitment. 



7.i NORTH CAROLINA REGISTER May 1, 1992 



27 S 



PROPOSED RULES 



(c) Fach anencv shall be responsible for evalu- 
ating the accuracy of statements made in an ap- 
plicatum, and may seek loh-relatcd e\idence of 
the applicant's suitahilit\ for employment. 

(d) An applicant may be disqualified if he^ 

( 1) lacks ans" of the preliminar% qualifications 
established lor the class of the position 
beinsj applied for: 

(2) has been con\icted of a crime of a nature 
which would raise serious public doubt 
about suitability for the responsibilities of 
the specilic position being applied for: 

(3) has made a false statement of material fact 
in the application process; 

(4) used or attempted to use political pressure 
or hnber\ to secure an advantatie in the 



select 



ion process; 



(61 



fills to submit an application correctly or 
within the prescnbcd time limits; 
has direclK' or indirectly obtained infor- 
mation conceminiz any required selection 
procedure to which an applicant is not 
entitled; 



lacks the physical or mental ability to 
perlorm the essential duties of the position 
e\en \\ ith reasonable accommodation; 



121 

(S) holds an otfice or has other employment 
which would constitute a conflict of in- 
terest with the public responsibility vested 
in the position being sought. 

Statutoiy Authorhy G.S. 126-4. 

.1904 \ErKR.\N'S PREFERENCE 

Persons entitled to veterans' preference must so 
indicate on any application tiled. Venfving doc- 
umentation may be required b\ the agency. 

Statutoiy Authority G.S. 126-4. 

.1905 SELECTION 

(a) Selection of .Applicants: 

( 1 ) The selection of applicants for appoint- 
ment will be based upon a relative con- 
sideration of their qualifications for the 
position to b£ tilled. .Adxantage will be 
gi\en to :ipplicants determined to be best 
qualified :ind hinng authonties must rea- 
sonably document hinng decisions to ver- 
ify this ad\antage was granted and explain 
their basis lor selection. 

(2) .Selection procedures and methods will be 
\alidl\' related to the duties and responsi- 
bilities of the vacancN to be filled. In anv 



\acanc\ instance, the same selection 
process will be used consistenth with all 
the applicants. 1 qual emploMnent con- 
sideration will be afforded. Reference 



lb) 
ill 



the (2| 



Hi 



(ii 



checking and other means of verifvLng 
applicant qualifications may be employed 
as necessarv_ It should be recognized and 
explained to persons selected that the 
probationar\' penod h a required exten- 
sion of the selection process. 
■Minimum Qualifications: 
I he employee or appUcant must possess 
at least the training and experience re- 
quirements, or their minimum equivalent. 
set forth in the state class specification for 
the class of the position to he filled. This 
shall apply in new appointments, pro- 
motions, demotions, transfers, and rein- 
statements. 

Ihe training and experience requirements 
sen,'e as indicators of the possession of the 
skiUs. knowledges, and abilities which 
have been shown through job evaluation 
to be important to successful perform- 
ance, and as a guide to primary' sources 
of recruitment. It is recognized that a 
specific quantity of formal education or 
numbers of years experience does not al- 
ways guarantee possession of the neces- 
saPv' skills, knowledges, and abihties for 
e\ep. position. Qualifications necessar\' 
to perform successluUv may be attained in 
a \anety of combinations. ]n e\'aluating 
qualifications, reasonable substitutions of 
formal education and |ob-related expen- 
ence, one for the other, will be made upon 
request bv the local appointing authority 
to the appri.ipriate state re\iew agency. 
.Management is responsible for determin- 
ing the vac:mcN -specific qualifications that 
are .in addition to minimum class stand- 
ards. Such qu:dification requirements 
must bear a logical and job-related re- 
lationship to the minimum standard. 
■Management shall be accountable for the 
ad\erse effects resulting from the use of 
qualification standards that arc unreason- 
ably construed. 

The re\iew authorit\' for qualifications in 
questionable selection situations rests first 
with the respectne Regional Personnel 
Office and (."cntral Otfice of the Depart- 
ment of Human Resources, or in the state 
Office of C.'rmnc Control and Public 



SaJetv. and finalK with the OiTice of State 
Personnel. 



In any Statutoiy Authority G.S. 126-4. 



SECTION .2000 - .APPOINTMENT AND 
SEP.\R\riON 



279 



'.i \ORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



.2001 APPOINTMENT 

An appointment ']% the approved employment 
of an applicant or employee to perform the duties 
and responsibilities of an established position 
subject to the provisions of the State Personnel 
Act. The selection and appointment of persons 
to all subject positions shall be by^ the action of 
the appointing authority. 

Statutory Authority G.S. 126-4. 

.2002 TYPES OF APPOIN T.MENTS AND 
DURATION 

(a) Probationary Appointment: 

(1) Indhiduals receiving original appoint- 
ments to permanent positions must serve 
a probationary period. Persons being re- 
hired after leaving employment in a sub- 
ject position, and employees voluntarily 
accepting promotions, transfers or de- 
motions in another county, social services 
department, mental health program, dis- 
trict health program or emergency man- 
agement program may be required to 
serve a probationary^ period by their new 
employer. This period is an essential ex- 
tension of the selection process, and pro- 
vides the time for effective adjustment of 
the new employee or elimination of those 
whose performance will not meet accept- 
able standards. 

(2) The length of the probationary period 
shall not be less than three nor more than 
nine months of either fuU-time or part- 
time employment. The length is depen- 
dant upon the complexity of the position 
and the rapidity of progress made by the 
particular individual in the position. 
When the employee's performance meets 
the required standard of work, after at 
least three months and not more than 
nine months in the position, the employee 
shall be given permanent status unless in 
a trainee appointment. If the desired level 
of performance is not achieved within 
nine months after initial appointment, the 
employee shall be separated from service 
unless in trainee status; an employee with 
a trainee appointment is expected to make 
a satisfactory' progress, but is not perma- 
nent until he has completed the training 
period. 

(3) At any time during a probationary period 
an employee may be separated from ser- 
vice for causes related to periormance of 
duties or for personal conduct detrimental 
to the agency without right of appeal or 



hearing. The employee must be given 
notice of dismissal, including reasons. 
(4) Employment in a temporary appointment 
may be toward the probationary period 
at the discretion of the appointing au- 
thority. Hmployment in an intermittent 
or emergency appointment shall not be 
credited toward the probationary period, 
(b) Trainee Appointment: 

(1) A trainee appointment may be made to a 
position in any class for which the spec- 
ification includes special provisions for a 
trainee progression leading to a regular 
appointment. An individual may not be 
appointed as a trainee if he/she possesses 
the acceptable training and experience for 
the class. 

(2) The specification for each class in which 
a trainee appointment is authorized will 
define the minimum qualifications for the 
trainee appointment and the minimum 
qualifications for a regular probationary 
appointment. It ii, of course, expected 
that the individual will process through 
supervised experience to a minimum level 
of satisfactory performance in the position 
during a period of time indicated by the 
difference between the amounts of experi- 
ence required for the two types of ap- 
pointments. This limit does not include 
time spent on educational leave or addi- 
tional time required to participate in a 
work-study program designed to meet ed- 
ucational requirements for the class. An 
employee may not remain on a trainee 
appointment beyond the time he meets 
the educational and experience require- 
ments for the class. .After the employee 
has successfully completed all educational 
and experience requirements he shall be 
gi\'en probationary' or permanent status in 
the position or shall be separated. If the 
period of the trainee appointment equals 
or exceeds nine months, the employee 
must be given permanent status or be 
separated at the completion of the trainee 
period. 

(3) If an employee with permanent status in 
another class accepts a traiaee appomt- 
ment. the permanent status will be waived 
for the duration of the trainee appoint- 
ment. The employee can regain perma- 
nent status either through successful 
completion of the trainee appointment, 
by reinstatement to the class in which he 
previously held status, or bv transfer to a 
position in a class for which he, she would 



7:3 NORTH CAROLINA REGISTER May I, 1992 



280 



PROPOSED RILES 



ha\e been eligible ba?ed on previous per- 
manent status. 
(4 1 A former employee \\ ho does not meet the 
minimum requirements of the class to 
'Ahich he is being appointed shall be gven 
a trainee appointment. All requirements 
for the trainee appointment must be sat- 
is tied pnor to attaining permanent status. 
(c) Permanent .Appointment. A permanent 
appointment is an appomtment to a permanently 
established position when the incumbent is ex- 
pected to be retained on a permanent basis. 
Permanent app<nntments follow the satisfactory 
completion of a probationary and or trainee ap- 
pointment, or may be made upon reinstatement 
of a qualified employee. 

(di Time- Limited .Appointment. A time- 
limited appointment may be made to: 

( 1 1 a permanent position that is \'acant due to 
the incumbent s lea\e of absence and 
when the replacement employee's senices 
will be needed lor a penod of one year or 
less: or 
[2_i to a permanent postion that has an estab- 
lished duration of no more than two 
years. Such appointment shall not be 
made for less than six months. If at the 
end of the two year time-limited appoint- 
ment, the work is expected to contmue 
and the position becomes permanent, the 
emplosee should be gi\en a permanent 
appointment. A time-limited appoint- 
ment IS distinguished from a temporary 
appointment by the irreater length of time, 
and from the regular permanent appoint- 
ment by its limited duration. 
lei femporary .Appointment. A temr>orary 
appomtment may be made to a permanent or 
temporary position, '^^e appointment shall be 
limited to a maximum duration of 12 months. 



ifi Pre-\"ocational Student .Appointment. This 
appointment is 12, be used to enable students to 
gam practical knowledge of their particular oc- 
cupational area of mterest. A suitable plan for 



traming under close supervision must be devel- 
oped for the indr.idual. In the case of a co- 
operati'.'e. work stud\". internship, or similar 
appointment, the time schedule for work must 
be determined. The basis of eligibility and se- 
lection tor such an appomtment shall be outhned 
in a I'ormal plan de\x'loped bv the participating 
agencies tor each tvpe and le\el of vtudent m- 



voh'ement. I poo successful completion of their 
training, indi'.iduals mav be considered for an\" 
vacant position tor which qualilicd. 
(g| L-mergencv .Appointment: 
( 1 ) An emergency appointment ma\' be mad 
when an emergency situation exists re 



quiring the ser/ices of an employee before 
it IS possible to identify a quaht'ied appli- 
cant through the regular selection process. 
When it is determined that an emergency 
appomtment is nece^^ar\'. aU other re- 
quirements for appointments will be 
waivecL 

f2i An emergency appointment mav be made 
lor a penod of U2 to 6n work da\s (con- 
secuti'.'e or non-consecuti".ei. or a total of 
4SiJ hours "in pay status". .Anv one mdi- 
vidual maN" not recei\'e successi\e emer- 
gencN appointments v.ith the same 
department or agencv. At least three cal- 
endar months must elapse before that de- 
partment or agency can gi\'e the same 
indi\idual another emergency appoint- 
ment, 
(hi .Appointment of Incumbents in Newh- 
Co'.ered Programs: 

1 1 1 Lpon extension of State Personnel .Act 
requirements to a program, position, or 
group of positions, the incumbent! s i mav 
be appointed with permanent status in his 
classifications under auN' of the follo\\ing 
circumstances: 



Ci 



r.^i 



I .A I 1 he employee is qualified for rein- 
statement on the basis of pre^ious per- 
manent status in a comparable position: 
or 

( Bi The emplo\'ee has at least three m.onths 
of satislactor\' service in the program or 
agency, as certified bv the appointmg au- 
thontv. and the appointmg authontv re- 
commends that the employee be granted 
permanent status. 

If tlie agencN' fails to grant permanent sta- 
tus within nine months from the initial 
co\'erage then the incumbent must be ter- 
minated. I:mplo\ees gi\'en trainee ap- 
pointments will be gi'.en permanent status 
consi>tent with other trainee appomt- 
ments. 

Incumbents who have less than three 
months ol service ^'.ith the agencv shall 
be contmued with no status until the\' are 
granted permanent status or terminated 
as required m this Rule. Employees with 
more than three months but less than nine 



months 



the 



IS ser.'ices m tne agenc\' ma\' be 

continued without status until nine 



months have elapsed. At the end of nine 
months. howe\'er. the incumbent must be 
granted permanent status or terminated. 
i_i) \\'ork--\gainst .Appointment. When quali- 
fied apphcants are una'.'ailable and there is no 
trainee proMsion for the classification of the va^ 
re- cancN . the appointing authontv mav appoint an 



IS I 



':i SORTH CAROLISA REGISTER May 1. 1992 



PROPOSED RULES 



employee below the level of the reuular classi- 
fication in a work-aeainst situation. A work- 



auainst appointment is for the purpose ot 
alJowintz the employee to aain the qualifications 
needed for the full class through on-the-job ex- 
perience. Ihe appointee must meet the mini- 
mum training and experience standard ot the 
class to which initialh' appointed. A work- 
against appointment may not be made when ap- 
plicants are a\ailable v\ho meet the training and 
experience requirements for the full class, and tor 
the position in question. 

Statutory Authority G.S. 126-4. 

.2003 PROMOTION 

(a) A promotion is a change to a classification 
at a higlier level. Ihis may result from move- 
ment to another position or by the present posi- 
tion being reallocated to a higher classification 
as a result of increases in the le\el of duties and 
responsibilities. 

(b) When it is feasible, a vacancy should be 
filled by promotion of a qualitled permanent 
emplo\ee. Selection should be based upon 
demonstrated capacity, and quahtv of services. 
If promotion results from movement to another 
position, the candidate must possess the mini- 
mum training and experience for the class. ]f the 
promotion results Irom the present position be- 
ing reallocated to a higher classification, the em- 
ployee ma\ be promoted by wai\er of the stated 
training and experience requirements it he has 
satisfictorilv pertbrmed for a minimum of three 
months prior to the reallocation. 

(c) An emplo\ee in a work-against appcnnt- 
ment cannot be promoted, upon reallocation of 
his position, by wai\er of training and expenence 
requirements until he has sen.ed at least one year 
in the work-against class or until qualified for the 
new class. The incumbent in a work-against sit- 
uation must be promoted as soon as he meets the 
qualifications tor the higher class or the position 
must be reallocated to the lower class. 

(d) An employee in probationary or trainee 
status may be promoted to another position in a 
higher classification if t_he person is qualified tor 
such an appointment. Ihe employee's 
probationary period will continue until pertonn- 
ancc meets the required standard, as c citified by 
the appointing authority, except that m no case 
shall the duration be longer than nine months 
alter initial probationary appointment (unless the 
person i^ in trainee status). 

(e) An emplo\ee m probationar\" status occu- 



perience requirements; if not qualified the em- 
ployee shall remain at the former level working 
against the higher classification or be separated. 
If promoted during the probationary period, the 
employee will continue in probationary status 
until performance meets the req uired standard, 
but in no case shall the duration be longer than 
nine months after initial probationary appoint- 
ment (unless the person is in trainee status). 

Statutoiy Authority G.S. 126-4. 

.2004 DEMOTION OR RKVSSIGNMFNT 

Demotion or reassignment is a change in status 
resulting from assignment of a position to a lower 
classification level. It may result from the choice 
of the employee, reallocation of a position, inef- 
ficiency in pert'onnance, unacceptable conduct, 
reduction-in-force, or better utilization of indi- 
vidual resources. ]f the change results Irom in- 
etf'iciencv in performance or as a disciplinary 
action, the action is considered a demotion. If 
the change results from a mutualh' agreed upon 
arrans;ement, the action is cc^nsidered a reassign- 
ment. When an empknee in permanent, 
probationary or trainee status is demoted, it is 
expected that he will possess the minimum qual- 
ifications required for the new class at the re- 
spective le\el of appointment. 

Statutory Authority G.S. 126-4. 

.2005 SFJ'.\RATION 

Separation occurs when an employee lea\es the 
payroU for reasons indicated in this Rule or be- 
cause of death. Impkn ees yvho have acquired 
permanent status yy ill ntU be subject to involun- 
tary separation or suspension except for cause or 
reduction-in-force. 

( 1) Resignation or Retirement. An employee 
may terminate his services yvith the agency 
by submitting a resignation or request for 
retirement to the appointing authonty . ft is 
expected that an employee yyill uive at least 
tyvo yveeks notice prior to fns last day of 
yyork. 

(2) l^ismissal. Dismissal is involuntary sepa- 
ration for cause, and shall be made in ac- 



cordance yvith th 



tne £1 



ions of the Policy 



on Suspension and Dismissal 
(3) Reduction-in-l'orce. I or reasons o 



f 



curtailment of yvork, reorgani/ation, or lack 
of funds the appointing authonty may sepa- 
rate employees. Retention of employees in 
classes atfected shall be based on systematic 



p\ing a position at the time it is reallocated up- 
ward may be promoted t£ the ncyv class if the 
person possesses the minimum training and ex- manent employee shall be separated yvhile 



consideration of type of appointment, length 
of service, and relative efficiency. No per- 



7:i NORTH CAROLINA REGISTER May I, 1992 



282 



PROPOSED RULES 



there are emergency, intermittent, tempo- 
rary . prdhationaTy', or trainee emplosees in 
their mx months of the trainee profession 
senina in the same or related class, unless 
the permanent emplo\ee h not willing to 
transfer to the position held bv the non- 
permanent employee, or the permanent em- 
ploN'ee does ha\e the kncnvledge and skills 
required to peribrm the work of the alternate 
position within a reasonable penod of on- 
entation and training gjven any new em- 
ployee. A permanent employee who was 
separated by reduction-in-force may be 
reinstated at any time in the future that 
suitable empknment becomes ayailable. 
The emploNcr may choose to otTer employ- 
ment with a probationary' appointment. 
The emploNee must meet the current mini- 
mum education :md expcncnce standard for 
the class to which he is being appointed. 
(4) \'oluntar\ Resignation Without Notice. 
.\n\' employee \oluntanlv terminates em- 
plosment by failing to report to work with- 
out giyjng vyntten or yerbal notice to the 
emplosing agency. Such a failure shall be 
deemed to be a yoluntan resignation from 
emploN ment without notice when the em- 
plo\ ee is absent without appro\'ed leave for 
a penod of at least three consecutive, sched- 
uled workdays. Sep:iration pursuant to this 
policy should not occur until the empkning 
agencN has undertaken reasonable etTorts. to 
locate the employee and determine vyhen or 
y^^ the employee is intending to return to 
work. "1 his provision also applies when the 
employee is absent for at_ least three consec- 
utive, scheduled workdays, has been in- 
structed verbally or in wnting of a specific 



manner of reporting by management, and 
does not report in to the appropriate super- 
\isor\ perstmnel on a regular basis satisfac- 
tory to the employing agency. Such 
separatitms as descnbed in this Subpara- 
graph are y oluntarv separations Irom agency 
employment and create no nght of gneyance 
or appeal pursuant to the State Personnel 
.Act (Cj.S. Chapter 126). 
(5) Separation Hue to I'navailability When 
1 eaye is Exhausted. An employee may be 
separated on the basis of unavailability when 
the employee becomes or remains unavail- 
able for work after all applicable leave credits 
and benelits have been exhausted and 
agency management does not grant a lea\e 



etarx constraints, etc. Such a separation is 
an involuntarv separation, and not a disci- 
plinary dismissal as described in G.S. 126-35. 
and may be grieved or appealed. Prior to 
separation the employing agency shall meet 
with or at_ least notify the employee in writ- 
ing, of the proposed separation, the el forts 
undertaken to avoid separation and why the 
efforts were unsuccessful. The employee 
shaU have the opportumty in this meeting 
or m wnting to propose alternative methods 
of accommodation. If the proposed ac- 
commodations are not possible, the agency 
must notify the employee of that fact and 
the proposed date of separation. If the 
proposed accommodations or alternative 
accommodations are being reviewed, the 
agency must notify the employee that such 
accommodations are under review and give 
the employee a prc^iected date for a decision 
on this. Involuntary separation pursuant to 
this policy may be gneved or appealed. The 
employing agency must also give the em- 
ployee a letter of separation stating the spe- 
cilic reasons for the separation and setting 
forth the employee's nght of appeal. The 
burden of proof on the agency in the event 
of a grievance is not just cause as that term 
exists in Cj.S. 126-35. Rather, the agency s 
burden is to prove that the employee was 
unavailable and that the agency considered 
the employee's proposed accommodations 
for his unavailability ;md was unable to 
make the proposed accommodations or 
other reasonable accommodations. Agen- 



cies should make efforts to place an em- 
ployee so separated pursuant to this policy 
when the employee becomes available, if the 
employee desires, consistent with other em- 
ployment pnonties and nghts. However. 



there is no mandaton' requirement placed 
on an agency to secure an employee, sepa- 
rated under this policy, a position in any 



Statutoiy Authority G.S. 126-4. 

SECTION .2100 - COMPENS.VTION 

.2101 COMPENSATION PLAN 

(a I Ihe compensation plan shall include a 
schedule of salary ranges and rules for salary ad- 



vvithout pay for reasons deemed sufficient 
by the agency. Such reasons include but are 
not limited to. lack of suitable temporary 
assistance, cnticahtv o[_ the position, budg- 



ministration. Within basic policies and niles es- 
tablished by the State Personnel Commission, 
K)cal lunsdictions may establish and administer 
compensation plans which provide a level ot^ pay 
based upon tinanciai ability, fiscal policy . and 
local prevailing rates. 



2S3 



7:3 NORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(b) A compensation plan shall be maintained 
which provides a salan' rate structure or struc- 
tures adequate to appropnateh compensate all 
positions subject to the State Personnel Act. 
Ihis structure may be re\'ised in composition, or 
the total structure mo\ed upward or downward, 
in response to labor market trends and to legis- 
lative actions affecting salaries; such action is de- 
pendent on the availability of funds. 

Statutory Authority G.S. 126-4. 

.2102 EST.\BLISHME\T OF SALARY 
SCHEDLLE 

(a) Local jurisdictions shall establish and ad- 
minister salar\' schedules which meet basic ap- 
proval requirements of the State Personnel 
Commission as follows: 

(1) The schedule must consist of scries of sal- 
ary ranges with minimum, maximum, and 
intermediate rates ot pay. 



(2) There must be a \-ertical increase between 
consecutive salary ranges within the 
schedule. 



(b) The State Personnel Director shall make 
available salary schedule models which meet 
these basic criteria and make a\ailable staff re- 
sources to advise and consult with local junsdic- 
tions in the development of acceptable schedules. 
Boards of county commissioners or municipal 
governing boards may adopt and use a model or. 
as an altemati\'e. may submit a modified schedule 
for re\iew and appro\al by the State Pers(innel 
Commission. Schedules may be modified in or^ 
der to provide a structure deemed more suitable 
to local fiscal policy and financial ability so long 
as the other basic requirements are met. Modi- 
fied schedules shall be accompanied by data and 

statements of explanation supporting the need for 

the modification because of local financial abilit\' the lower class, his salary may remain the same 



missioners of the counties must jointly 
establish and submit a proposed schedule; 
the distnct or area schedule is established 
independently of the salary schedule for 
any of the individual counties, 
(d) An approved salary schedule must be in 
effect within a junsdiction at all times. ITte ap- 
pro\ed schedule shall be applicable to both ex- 
isting classes and to classes which may be 
established during its effecti\e period. 

Statutory Authority G.S. 126-4. 

.2103 SALARY R.VTES 

(a) New Appointments. The entrance salary 
rate for an employee shall be at the minimum of 
the range or at a salary rate within the salary 
range assigned to the class unless an employee is 
hired in a trainee appointment. Discretion 
should be exercised by boards of county com- 
missioners or their designees on new appoint- 
ments salaries above the minimum of the range 
to avoid creating sdary inequities within the lu- 
risdiction. 

(b) Promotion. When a promotion occurs, the 
employee s salary shall be increased, if it is below 
the new minimum, to at least the minimum rate 
of the salar.' range assigned to the class to which 
the emplo\ee is promoted. If an emplo\ee's 
current salar\' is already above the new minimum 
salary rate, his salary may be adjusted upward or 
left unchanged at the discretion of local manage- 
ment, provided that the adiusted salary does not 
exceed the maximum of the assigned salar\' range. 
If the salary falls between steps in the salary 
range, it may be adjusted to the next higher step 
in the range. 

(c) Demotion. When an employee's current 
salan falls abo\e the maximum of the range tor 



and fiscal policy. 

(c) Proposed local salary schedules shall be 
designated or submitted to the State Personnel 
Director b\ the beginning date of each fiscal \ear, 



until general schedule adjustments or range re- 
visions bnng it back within the lower range or 



and at the time of significant change dunng m- 
terim penods. In submitting, the foUowmg re- 
quirements shall pre\ail: 

( 1 ) 1 or the programs of a single county, the 
board of county commissioners shall es- 
tablish and submit a proposed salary 
schedule. 

(2) When a municipality is performing a sub- 
ject activity, the governing board of the 
municipality shall establish and submit 
the proposed schedule. 

(3) When tw o or more c(iunties are combined 
into a distnct or area for the pertbrmance 
of an acti\ itv. the boards of county com- 



mav the salary be reduced to an\ step m the 
lower salary' range, as long as the reduced salary' 
does not faH below the minimum salary rate of 
that range, ff the employee's current salary falls 
between steps in the lower range, h mas be re- 
duced to the next lower step. 

(d) Salary _\diustments; Salary Plan Revisions. 
When the salary rates in the salary plan are 
changed or a class is moved to a higlicr or lower 
salary grade, the following adjustments shall be 
made in incumbents salary rates: 

( 1 ) When It is an upward revision and the 
employee's cuixent salary is less than the 
minimum salary rate of the salary range 
for the classification, the employee s salary- 
shall be adjusted to at least the minimum 



7:3 NORTH CAROLlN.i REGISTER May I, 1992 



284 



PROPOSED RULES 



of the range. If the employee's salary is 
already at or above the new minimum of 
the ran tie, manauement may elect to in- 
crease the salary to another step within 
the range. An emplo\ee s salan,' may not, 
however, exceed the maximum of the 
range. 



(2) n^^ there is a downward revision, manage- 
ment may elect to reduce each employee's 
salary rate bv a corresponding amount or 
allow the salary rates to remain the same, 
(e) I rainee Adjustments. Dunng a trainee 
appointment an evaluation of the indisidual's 
pertbnnance and progress on the job is to be 
made at frequent intervals. As a general guide, 
salary' increases are provided at specitied intervals. 
I hese increases arc not automatic, and are not 



necessarily limited to the full elapse of specitied 
intervals. Salary adiustments may be either ad- 
vanced or delayed depending upon the progress 
of the employee. In cases where salary adjust- 
ments ha\e been advanced, the trainee's salary 
will not be adjusted to the minimum of the range 
for the regular classification until the employee 
meets all education :ind expenence requirements 
for the appointment. Adjustments are to be 
given upon recommendations by the appointing 
authority and the supervisor that the employee 
has earned an increase. When the employee with 
a trainee app(Mntment has successfully completed 
the training and expenence requirements for the 
classification, he must be giyen a regular ap- 
pointment to that classiticati(Mi and his salary 
increased at least to the minimum of the salary 



(f) An employ ees salary canned be raised bv 
merit increases to exceed the maximum salary 



rate of the salary range assignment to his class. 



Slaluton; Authority G.S. 126-4. 

.2104 PANsr.vns 

An employee |s in pay status when yvorking. 
when exhausting yacation or sick leay e, or yvhen 
drayving yvorker s compensation for a penod not 
to exceed 12 months. .An employee is n(U in pay 
status after his last day of yyork yyhen separated 
because o^L resignation, dismissal, death, retire- 
ment or reduction in force. 

Statutoty Authority G.S. 126-4. 

.2105 OIIIF.RP.W 

(a) I or those cities or counties m yyhich all 
employees are covered by a plan tor a t^1m^ of 
pay . in addition to base salary . tor ser\ices per- 
formed, the coverage may be approved for agen- 
cies subject to these policies. The local 



authorities shall submit the plan to the .State 
Regional Personnel Office through their Depart- 
ment of Human Resources 01 lice or State Otfice 
of Crime Control and Public Saletv. and certify 
that it IS computed on a consistent basis for all 
employees. 

(b) Where there are tyvo or more local juris- 
dictions comprising a single departmental unit, 
the junsdictions shall operate as one unit in es- 
tablishing any special pay forms: the action shall 
be independent of provisions for other employees 
of either jurisdiction. 

Statutory Authorilv G.S. 126-4; 126-5; 126-9. 



.2106 .\SSIGNMKM OF CL.\SSES WITHIN 
SALARY sen KDl IE 

(a) Within an approved salary schedule, local 
jurisdictions may determine salary range assign- 
ments for competitive seryjce classes. The fol- 
lowing basic requirements shall be adhered to in 
making salary range assignments: 

( 1) The use of appropriate class relationships 
based upon diflerences in the difticulty 
and responsibifity of the yvork. In this 
regard, the relative difference betyveen and 
among classes in a class series, and be- 
tyveen significantly related classes within 
an occupational grouping, must be main- 
tained as retlected bv the official classi- 
ticati(^n plan. Ixception requests may 
occasionally arise as a matter of local fiscal 
policy. Such requests, accompanied by 
supporting data and statf recommenda- 
tion, yvill be presented to the Stale Per- 
sonnel Commission for approval; 

(2) tach class yvill retain the same salary range 
assignment in i_ts use in aU subject pro- 
grams of the jurisdiction; 

(3) The current salary of each employee, ex- 
cept under specitic circumstances included 
in the approved rules for salary adminis- 
tration, must fall betyveen the minimum 
and maximum steps o^ the salary range 
of the class to which his position is as- 
signed: 

(4) A tinal tactor to be used in making salary 
range assignments is consideration of the 
local tinancial ability and tiscal policy. 

(b) It IS not the intent of these provisions that 
the individual salaries of competent employees 
be threatened. 

(c) 1 he State Personnel Director shall provide 
intbnnation and guidance on i-|uestions ot class 
relationships, labor market intlucnce. tiscal policy 
considerations, and other matters pertinent to the 
detenniiKttion ot equitable and competitive salary 
range assignment. 



2S5 



7:3 NORTH CAROLLWi REGISTER May I. 1992 



PROPOSED RULES 



(d) Salary Plan for Fmployees of the Area 
Authority. The area mental health program au- 
thority shall estabHsh a salary plan which shall 



set the salaries for employees of the area author- 
itv. t he salary plan shall be in compliance with 
Chapter 126 of the General Statutes. In a 
multi-county area mental health program, the 
salar\- plan shall not exceed the hi.ghest paying 
salary plan of any member county. In a single 
county area, the salary plan shall not exceed the 



county's salary plan. Ihe salary plan limitations 
set forth in this Section may be exceeded only if 
the area authority and board or boards of county 
commissioners, as the case may be, jointly agree 
to exceed these hmitations. 

Statutory Authority G.S. 126-4. 

.2107 PROCEDURES FOR SLBMISSION AND 
APPROVAL 

(a) By the beginning date of each fiscal year 
and at times of any change during interim peri- 
ods, a designated or modified salary schedule, and 
a list of salary range assignments to classes will 
be submitted to the State Personnel Director. 



The State Personnel Director shall reyiew the 
proposed schedule and salar\ range assignments, 
determine that approyal requirements haye been 
met and certify jurisdictions meeting these re- 
quirements to the State Personnel Commission. 
The State Personnel Commission vyill then re- 
view and either grant or withhold approval of the 
proposed plan in each case. In cases where op- 
position to a proposed plan is unresolved locally. 
the State Personnel Commission will hear the 
opposing arguments in public session prior to 
making a final decision. 

(b) An approved salar\ schedule and salar. 
range assignment plan must be in efl'ect within a 
jurisdiction at all times. 

Statutory' Authority G.S. 126-4; l22C-l56(a). 

SECTION .2200 - HOLRS OF WORK AND 
OVERTIME COMPENS.ATION 

.2201 IIOLRS OF WORK AND OVERTIME 
COMPENS.VTION 

The state poUcv on "hours of work and over- 
time compensation" as outlined m 25 NCAC ID 
. l^^OO is intended to provide guidance in comph- 
ing with federal regulations: however, each 
county . district, or area jurisdiction is responsible 
for compliance directh to the L "S. Department 
ot Labor. 

Statutory Authority G.S. J 26-4. 



SECTION .2300 - DISCIPLINARY ACTION: 
SUSPENSION, DISMISSAL AND APPEALS 

.2301 CAUSES 

(a) rVnv employee, regardless of occupation, 
position or profession may be warned, demoted, 
suspended or dismissed by the appointing au- 
thontv. The decree and type of action taken 



shall be based upon the sound and considered 
judgment of the appointment authority in ac- 
cordance with the provisions of this policy. 

(b) Ihe basis for any disciplinary action taken 
in accordance with this pohcy falls into one of 
the two following categories: 

( 1 ) Discipline imposed on the basis of job 
performance; 

Discipline imposed on the basis of per- 
sonal conduct. 

Note: Ihe Job Performance category 
IS intended to be used in addressing 
peribrmance-rclatcd inadequacies for 
which a reasonable person would ex- 
^ect to be notified of and allowed an 



ill 



opportunity to improve. Personal 
Conduct discipline is intended to be 
imposed for those actions for which 
no reasonable person could, or 
should, expect to rccciv'e prior 
warnings. 



Statutory Authority G. S. 126-35. 

.2302 DISMISSAL: CAUSES RELAIING TO 
THE PERFORMANCE OF DUTIES 

(a) This category" covers all t\pes of 

performance-related inadequacies. This policy 
does not require that progressive warnings all 
concern the same type of unsatistactorv' per- 



formance^ Warnings related to personal conduct 
ma\ be included in the prosjessive system for 
pertormance-related dismissal provided that the 
employee receives at least the number of 
warnings, regardless of the basis ot the warnings, 
required for dismissal on the basis of inadequate 
periormance. Warnings administered under this 
pohcv are intended to bring about a pennanent 
improvement in job periormance; should the re- 
quired improvement later detenorate. or other 
inadequacies occur, the supenisor mav deal with 
tliis new unsatisfactory peribrmance at the next 
level of discipline. 

(b) I'mplovees who are dismissed for unsatis- 
factory' job periormance shall receive al least 
three warnings: first, one or more oral warnings; 
second, a vvntten wammg to the employ ee doc- 



umenting all relevant points covered in the disci- 
plinan discussion: third, a final written warning 
which notilies the employee that failure to make 



7.i NORTH CAROLINA REGISTER May 1, 1992 



2S6 



PROPOSED RULES 



the required pcrFormance impro\ements may re- 
sult in dismissal. 

(c) hi admmistering this policy, super\isors 
should be ax'.are that, in part, the intent of this 
policy is to assist and promote impro\ed em- 
ployee pertbrmance. rather than to punish. 

( 1 ) Oral W'aming: 

(-■\) The supervisor is responsihle for assur- 
jruz the satisfacton performance work as- 
signed to his unit. When, in the judgment 
of the superyisor. unsatisfactor\ perform- 
ance occurs, then use of the disciplinary 
process may be appropnate. 
(B) In a pn\'ate discussion with the em- 
ployee, the supen isor or designated man- 
agement rcpresentatne shall do the 
following: 

(i) Inform the emplo\ee that this is a 
uaming. and not some other non- 
disciplinan.' process such as counseling: 
(ii) Inform the emplo\"ee of the spccit'ic 
pertbrmance deficiencies that are the 
basis for the uaming: 
(iii) Tell the empknee uhat specific im- 
pro\'ements must be made to correct 
the unsatisfactQr\' pertbrmance; 
(iy) I et the emploxee know \shat time is 
being allowed \o_ make the required im- 
proNcments: 
{\) leU the employee of the conse- 
quences of failing to make the required 
improyements. 
Note: h IS a recommended personnel practice to 
allow the emplo\ee to respond to the specific 
reasons for the uaming. hi some cases this ma\" 
attect the supervisor s decision on whether to 
discipLme an emploNce. Supenisors should also 
record the date and specifics ot the uaming for 
possible future use. 

(2) W'ntten Warning. In a pri\ate meeting 
uith the emplo\ee the supervisor or des- 
ignated management represent at i\e shall: 

i.\) Conduct a disciplinary conference uith 
the emploNce: this disciplinan.' conference 
should foUou the same steps as set forth 
for an oral uaming: 

(B) Tell the employee he will receiye a 
uritten uaming co\cring all significant 
points of this conterence: 

(C) Prepare and send to the emploNce a 
untten warning co\enng sigTificant points 
of the disciplinary conference: care should 
be taken to include the specific reasons for 
the uaming. 



Note: Reference nia\" be made in this uaming to 
document an earlier oral u aming. 
(3| Iinal Wntten Warning; 



(A) Before issuing the final written warning, 
the supervisor and appropriate agency 
management should review the contents 
of the warning, the follouing steps shall 
be taken in issuing a final untten warning; 
(i) Prepare a final untten uaming to the 

employee; care should be taken to in- 
clude the specific reasons for the uam- 
ing; 

(ii) In prjyate. conduct a disciplinary' 
conference with the employee; at this 
conference, the specific reason for the 
action, the necessary' unpro\ements and 
the time alloued to make improye- 
ments should be discussed: 

(iii) Present the uaming to the emploNee 
at the end of the conference: the em- 
pknee should be informed, either orally 
in the uaming, that failure to correct 
the unsatisfactory pertbrmance ma\" re- 
sult in dismissal. 

(B) During the period after the final untten 
uaming has been gnen, management, in 
Its discretion. ma\ choose to counsel uith 
the employee concerning his employment 
status before a decision to dismiss is made. 
Such counseling should in\ohe a dis- 
cussion of t]ie necessity for the employee's 
commitment to improve pertbrmance. 
As a part of this counseling, management 
may request the employee to take up to a 
day s leave with pa\ to consider uhether 
or not the employee uishes to continue 
his employment uith the agency. This 
tunc aua\' from the job site shall not be 
charged to the employee's vacation or sick 
leave: it shall be considered as the em- 
ployee's assignment for that time not at 
the normal job site. It should be stressed 
to the employee that a decision to con- 
tinue employment uith the agency will 
require a conimilnient to improve per- 
tbrmance. and that a lack of improvement 
will lead to dismissal. C'learlv. such a 
procedure is not suitable in all situations; 
management is expected to use its dis- 
cretion to determine vv here such a proce- 
dure would benefit the employee and the 
agency. 

Statutory Authority G.S. 126-4: 126-35. 

.lM^y DISMISS.AL 

Before an employee may be dismissed, the fol- 
louing shall occur: 
i 1 1 The Supervisor recommending dismissal 
shall discuss the recommendation with ap- 
propnate agency management and receive 



287 



7:3 AORTH CAROLEXA REdlSTER May 1,1992 



PROPOSED RULES 



management's authorization to hold a pre- 
dismissal conference with the employee 



The purpose of the pre-dismissal conference 
is to review the recommendation with the 
affected employee, and by hstening to and 
considering information put forth by the 
employee, to insure that such a significant 
personnel action is not based on mistaken 
or erroneous information and conclusions. 

(2) I'he designated management representative 
shall schedule and conduct a pre-dismissal 
conference with the employee. Advance 
notice of the pre-dismissal conference must 
be given to the employee. A second man- 
agement representative or security personnel 
may be present at management's discretion. 
No attorneys representing either side may 
attend the conference. In the conference, 
the Supervisor shall gi\'e the employee oral 
or written notice of the recommendation for 
dismissal, including specific reasons for the 
proposed dismissal and a summary of the 
information supporting that recommenda- 
tion, ["he employee shall have an opportu- 
nity to respond to the proposed dismissal, 
to refute information supporting the recom- 
mended dismissal action and to offer infor- 
mation or arguments to support his 
position. Kovery eflort shall be made by the 
Supervisor or the designated management 
representative to assure that the employee 
has had a full opportunity to set forth any 
information in his possession in opposition 
to his dismissal prior to the end of the con- 
ference. 

(3) Following the conference, management 
shall review and consider the response of the 
employee and reach a decision on the pro- 
posed recommendation. If management's 
decision is to dismiss the emplos ee, a written 
letter of dismissal shall be prepared contain- 
ing the specific reasons for dismissal, the ef- 
fective date of the dismissal and the 
employee's appeal rights. To minimize the 
risk of dismissal upon erroneous informa- 
tion, and to allow time foLlowmg the con- 
ference for management to re\iew aU 
necessary information, the decision to dis- 
miss should normally not be communicated 
to the employee prior to the beginning of the 
next business day following the conclusion 
of the pre-dismissal conference. The em- 
ployee shall be infonncd of the decision and 
furnished, cither in person or by mail, a copy 
of the letter of dismissal, receipt of which 
shall constitute dismissal. A management 
decision not to dismiss the employee may 
be communicated to the employee at any 



time following the conclusion of the confer- 
ence. 
(4) Ihe effective date of a dismissal for unsat- 
isfactory job performance shall be deter- 
mined by management. A permanent 
employee who is to be dismissed for unsat- 
isfactory job performance may, at manage- 
ment's discretion, be given up to two weeks' 
working notice of his dismissal. Instead of 
providing up to two weeks' working notice 
and at the discretion of management, an 
employee may be given up to two weeks' 
pay in heu of the working notice. Such 
working notice or pay in lieu of notice is 
applicable only to dismissals for unsatisfac- 
tory job performance. The effective date of 
the dismissal shall not be earlier than the 
letter of dismissal nor more than 14 calendar 
days after the notice of dismissal. 



Statutory Authority G.S. l26-4(7a). 

.2304 DISMISSAL: CAUSES RELATING TO 
PERSONAL CONDUCT 

(a) Employees may be dismissed, demoted, 
suspended or warned on the basis of unaccepta- 
ble personal conduct. Discipline may be im- 
posed, as a result of unacceptable conduct, up to 
and including dismissal without any prior warn- 
ing to the employee. Oral or written warnings 
given for unacceptable personal conduct accord- 
ing to this Rule cannot be used to shorten the 
progressive warning process required to dismiss 
an emploNce on the basis of unsatisfactory' job 
performance. 

(b) 13isciplinarv demotions, suspensions or 
dismissals for personal conduct require wntten 
notification to the empknee. Such notification 
must include spccitic reasons for the discipline 
and notice of the employee's right of appeal. 

(c) Prior to dismissal of a permanent employee 
on the basis of personal conduct, there shall be 
a pre-disrmssal conference between the employee 
and the person recommending dismissal. This 
conference shall be held in accordance with the 
provision of 25 NCAC H .2303. 

Statutoiy Authority G.S. 126-4: 126-35. 

.2305 SUSPENSION 

Investigatory or disciplinary' suspension may be 
used by management in appropriate circum- 
stances. However, the following provisions shall 
control its use: 
( 1 ) An employee who has been suspended for 
either investigatory or disciplinary reasons 
must be placed on compulsop. lea\'c of ab^ 
scnce without pay. 



7:3 NORTH CAROLINA REGISTER May I, 1992 



2S8 



PROPOSED RULES 



(2) In\L'stimtor\' suspension without pay may 
be used to provide time to insestigate, es- 
tablish facts, and reach a decision concerning 
an empknee's status in those cases where it 
is determined the employee should not con- 
tinue to work pending a decision. 
ln\estigatorv suspension without pay may 
he appropnatelv used to pro\idc time to 
schedule and hold a pre-dismissal confer- 
ence. Also, management may elect to use 
investigatory suspension in order to a\oid 
undue disruption of work or to protect the 
safety of persons or property. An 

in\estigator\ suspension without pay shaU 
not exceed 45 calendar da\s. Houever, an 
agencN' may. in the exercise of its discretion. 



e.xtcnd the penod of investigator\' suspen- 
sion without pay be\ond the 45-day limit. 
I he emploN'ee must be informed in wnting 
of the extension, the length ot the extension, 
the specific reasons for the extension and his 
nght of appeal. If no action has been taken 
by management by the end of 45 calendar 
da\ s. and no extension has been made, one 
of the foUowinii must occur: Remstatcment 
of the emplo\ee with full backpa\ ; appro- 
pnate discipUnar\ action based on the results 
of the in\estigation: reinstatement of the 
emplo\ee with up to three days pay de- 
ducted trom the backpay. 
(3) hi\estigator\^ suspension of an employee 
shall not be used for the purpose of delaying 
an administrati\e decision on an emplo\ee"s 
work status pending the resolution of a civil 
or criminal court matter in\ol\ing the em 



plovce. 

(4) .An emplo\ee who has been suspended for 
in\'estigatcip, reasons may be reinstated with 
up to three da\ s pa\" deducted from his sal- 
ary. Such determination is to be based upon 
management's determination of the degree 
to which the employee was responsible for 
or contnbuted to the reasons for the sus- 
pension. This period constitutes a discipli- 
nan' suspension without pa\ and must be 
etleeted m acccirdance with Paragraphs (5) 
and (6) of this Rule. 

(5) An emploNce may be suspended without 
pa\ tor disciplinary purposes for causes re- 
lating to an\ form of personal conduct or in 
conjunction uith a final wntlen warning for 
performance ot^ duties. I Iowe\er. a discipli- 
nar\ suspension without pa\ must be for at 
least one lull working da\ . but not more 
than three working da\ s. Prior to placing 
an emplo\ee on disciplinary suspension 
without pa\ . a management representatne 



shall conduct a pre-suspension conference 
with the emplo\ee. 1 his conference shaU 
be carried out in the same fashion as a pre- 
dismissal conference. 
(6) An emplo\ee who has been suspended 
without pay must be furnished a statement 
in writing settin.g forth the specific acts or 
omissions that are the reasons for the sus- 
pension and the employee's appeal rights. 
A pre-suspension conference is required only 
when the employee is suspended without 
pay for a disciplinary' reason: a pre- 
suspension conference is not required where 
an emplo\ee is suspended without pa\ for 
the purpose of an investigation. 

Statutory Authority G.S. 126-4. 

.2306 DEMOTION 

(a) Any employee may be demoted as a disci- 
plinary measure. Demotion may be made on the 
basis of either unsatisfactory' job performance or 
unacceptable personal conduct. 

( 1) Job Performance. An employee may be 
demoted for unsatisfactory job perform- 
ance alter the employee has received at 
least two pnor warnings on his peribrm- 
ance. At least one of the waming_s prior 



to demotion must be in writing. 



Q 



Personal Conduct. An employee may be 
demoted for unacceptable conduct with- 
out any pnor warning. Cause for de- 
motion on the basis of personal conduct 
does not ha\e to be as senous as cause for 
dismissal. 



me em- / -;, 



Notice. .An emplosee who is demoted 
must receive written notice of the specific 
reasons lor the demotion, as well as notice 
of his appeal rights, 
(b) Disciplinary demotions ma\ be accom- 
phshed m se\eral wa\ s. I he employee max be 
demoted to a lower classification with or without 
a loss in pa\ . Or. the emplo\ee may be reduced 
to a lower step in the same pay grade with a 
corresponding loss of pa v. In no event shall an 
emplo\ee's pay be lowered below step one of his 
current pa\ grade . unless the emplo\ee is de- 
moted to a lower classification. Pnor to the de- 
cision to demote an emplo\ee for disciplinar\ 
reasons, a management representati\e must con- 
duct a pre-demotion conterence with the em- 
plo\ee. 1 his pre-dcmoluin conference shall be 
accomplished in the same tashion as the pre- 
dismissal conterence. 

Statutory Authority G.S. 126-4(6): 126-35. 

.2307 SPECIAL PROVISIONS - CREDENTIALS 



2S9 



7:3 AORTH CAROLINA REGISTER May I, 1992 



PROPOSED RULES 



(a) By statute, some duties assigned to posi- 
tions ma',' be performed only by persons who are 
duly licensed, registered or certified as required 
bv the relevant law. 

(b) Employees in such classifications are re- 
sponsible for maintaining current, valid creden- 
tials as required bv law. Failure to maintain the 
required credentials is a basis for immediate dis- 
missal without prior warning. An employee who 
is dismissed shaU be gi\'en a written statement of 
the reason for the action and his appeal rights. 

Statutory Authority G.S. 126-4(3). 

.2308 APPEALS 

(a) A permanent employee who has been de- 
moted, suspended or dismissed shall have 15 cal- 
endar davs from the date of his receipt of written 
notice of such action to file an appeal with his 
agencv/county grievance procedure. Grievances 
which do not allege discrimination must follow 
the agency or county grievance procedure. An 
appeal of a final agency decision must be filed in 
accordance with G.S. 150B-23 and within 30 
calendar davs of receipt of the final agency deci- 
sion. 

(b) Grievances which allege discrimination 
may, at the election of the employee, proceed 
through the agency or count\- procedure or pro- 
ceed directly to the State Personnel Commission 
(SPC) for a hearing by the Office of Administra- 
tive Hearings (OAH) and a decision by the SPC. 
A direct appeal to the SPC (such appeal involv^ 
ing a contested case hearing by the OAH and a 
recommended decision bv that agency to the 
SPC) alleging discrimination must be filed in ac- 
cordance with G.S. 150B-23 and must be filed 
within 30 calendar days of receipt of notice of the 
alleged discriminatory act. 

(c) Grievances filed on an untimely basis (see 
G.S. 126-35. G.S. 126-36 and G.S. 126-38) must 
be dismissed. /VUegations of discrimination, if 
raised more than 30 calendar davs after the party 
alleging discrimination became aware or should 
have become aware of the alleged discrimination, 
must be dismissed. 



Statuton> Authority G.S. 126-35: 126-36; I26-3S; 
I50B, Article 3; 1 SOB- 23. 

SECTION .2400 - B.ASIC REQLIREMEN TS FOR 

A "SLBSTANTIALLY EQL l\ ALENT" 

PERSONNEL SYSTEM 

.2401 SYSTEM PORTION I: RECRLTTMENT, 
SELECTION, AND AD\ ANCEMENT 

General Requirement. Recruiting, selecting and 
advancing cmploNees wiU be on the basis of their 



relative ability, knowledge, and skills, including 
open consideration of qualified applicants for in- 
itial appointment. 
( 1) Recruitment: 
(a) Requirement. There must be a planned 
and organized recruiting program, carried 
out in a manner that assures open com- 
petition. 

(Guide. The recruiting program should 
be an easily recognizable and structured 
part of the staffing design for the person- 
nel function. All vacancies should be 
conspicuously posted in a regular location 
accessible to and frequented bv employ- 
ees. If efforts are to be extended outside 
the organization, posting should also oc- 
cur in a prominently public location 
within the jurisdiction, and further utili- 
zation of radio and media advertisements, 



and listing with the l-'mployment Security 
Commission should occur to broaden 
communications.) 



(b) 



Requirement. Special emphasis will be 
placed on efforts to attract minorities, 
women, the disabled, or other groups that 
are substantially underrepresented in the 
jurisdiction work force to help assure they 
will he among the candidates from whom 
appointments are made. 
(Guide. Filling from within should fairly 
consider and encourage workers of this 
group. For underrepresented groups in 
the work force, schools, community col- 
leges, selective media, interest groups and 
other organizations having special con- 
tacts with women, minorities, disabled, 
and older groups should be informed of 
vacancies in order to particularly encour- 
age potential applicants.) 
(2) Selection: 
(a) Requirement. The selection of applicants 
for vacant positions will be through open 
competition. 

(Guide. Selections from within is logical 
where there is need to further career de- 
velopment, and the work force generally 
is adequately representative of all race, 
sex, ethnic and disadvantaged groups of 
the labor force. In many cases, it will be 
beneficial to select from a group of appli- 
cants gained through internal and external 
competition.) 

Requirement. Selection procedures will 
be job related and will be in accord with 
the stipulations, validity, reliability, and 
objectivity of the Iniform Guidelines on 
Fmployee Selection Procedures ( FHS) 
(Federal). 



liil 



7:i NORTH CAROLINA REGISTER Mav L 1992 



290 



PROPOSED RULES 



(Guide. (1) There are several selection 
appr oaches available. All should measure 



knowlcdsies^ abilities, 



i£l 



I he important ski 

and work beha\iors needed for a job 
\'alidated vvnlten tests, assessment cen- 
ters, structured interviews, and supple- 
mental selt-assessment applicants are 
beinjj successtulK used. However, it may 
well be that no one approach will be 
suitable lor all jobs of the jurisdiction. 
The "content validity" portion of the 
I niform Guidelines appears to offer the 
greatest practical latitude for most juns- 
dictions. Adequate job analysis should 
insure the job relatedness of the 
approach(es) chosen. (2) There is con- 
siderable leeway tiranted in detcrminins a 
manageable number of eliables with dis- 
regard for relatne abilities, knowledges. 
and skills, would not meet the require- 
ment. Ad\antage should be gi\en to the 
most qualified a\ailable eligibles.) 
Requirement, .lob related minimum re- 
quirements for entrance to a class will be 
estabhshed wherc\er practical, and will be 
met by all candidates examined, appointed 
or promoted. 

(Guide. Program directors should be rc- 
cognized as a \aluable resource, and used 



ad\antagcously m detenninini^ minimum 
requirements. Regular minimum re- 
quirements and competitive procedures 
ma\ be s^aived or limited to hire disabled 
persons who ha\e physical or mental 
impairment substantially limiting a major 
life activity. Minimum qualifications and 
duties may also be modified to permit 
trainees.) 
Requirement. Prior to receiving a per- 



mancnt appointment, each employee will 
satisfactonh complete a reasonable, time 
limited probationary period. 
(Cjuide. .\ probationary' lime limit of less 
than three months would questionably 
gi\e supervisors enough time to fairly as- 
sess new emploNces, while a penod in ex- 
cess of one Near could be questionabh 
lengthy. The employees' performance 
sluHild he closely reviewed durmg the 
probationary" penod and positise feedback 
gnen by supenisors on both accomplish- 
ments and areas needing attention, so that 
success is encouraged.) 
(3) Gareer .\d\anccirient Requirement. Poli- 
cies and program affecting and effecting 



promotions will consider all eligible em- 

pknees uithin the )unsdiction and ade- cemed bv the classification proce 



quatelv assure that all persons promoted are 
qualified. 

(Guide. Internal career paths and advance- 
ment need to be conscientiously attended. 
Persons may be ad\antageously recruited 
from outside the organization through open 
competition where this wiU pro\ide abilities 
not available internally, the organization will 
be ennched, or opportunities for underrep- 
resented groups will be improved.) 

Statutory Authority G.S. 126-1 1. 

.2402 SYSTEM PORTION II: 

CI ASSIFICATION/COMPENSATION 

General Requirement. A current, equitable, 
and adequate position classification and com- 
pensation plan will be provided. 

( 1 ) Position Classification Requirement. Job 
Evaluation (svn. classification) plans will be 
based upon a soundly applied, professionally 
accepted job evaluation methodology which 
establishes the relative strength of related 
positions through consideration ot the diffi- 
culty, responsibility, and other requirements 
of the work. System components and all 
relationships determined along with accom- 
panying rationale will be fully documented. 
(Cjuide. ( 1 ) The job analysis process 
should be carried out so that it is equitably 
consistent in all applications. Job analysis 
factors which nonnallv should be included 
in addition to difficulty and responsibility, 
are working relationships and working con- 
ditions. Physical effort and other consider- 
ations of importance to employees and 
managers (and or required to identify and 
measure the work) mav need to be added for 
given job types. (2) The rationale for class 
(s\n. skill level, work level, etc.) relation- 
ships should be documented in detail suffi- 
cient to reconstruct the reasoning, on the 
basis of the job evaluation fictors. which led 
to a logical analvlical conclusion. Such 
documentation should also be constructed 
to sene the pun"'Osc of guidini^ tuture ana- 
Ivlical efforts. (3) Gurrent organizational 
charts, position descnption tiles, class his- 
tory files, and related inlonnation needs to 
be maintained to aid job analysis.) 

(2) Compensation: 

(a) Requirement. The compensation plan 
u ill, withm labor market constraints, have 
as Its pnncipal basis the class relationships 
(svn. skill level relationships, job relation- 
s hips , work level relationship, etc.) dis- 



291 



7:3 NORTH CAROLINA REGISTER May I. 1992 



PROPOSED RULES 



(b) Requirement. Within the limits of local 
financial ability and fiscal policy, the leyel 
of compensation assimed to each class of 
the plan will, in conjunction with Sub- 
paragraph (2)(a) of this Rule, adequately 
consider the compelitiye labor market 
within the geographical area of recruit- 
ment. 

(Guide. (1) WTiere classes haye been 
determined by the classijlcation process to 
be si.gnificantly related in terms of 
recruitment, labor market requirements or 
work requirements, the compensation re- 
lationships between related classes should 
reflect \ertical and horizontal relationships 
suggested by the classification analysis. 
Exceptions should occur only in those 
areas where statutory or organizational 
ceilings for appointed or elected otTicials, 
as an expression of fiscal policy, act to 
compress logical pav relationships at giyen 



(c) 



ditions and allocated financial resources 
for salaries and benefits; (d) "public pol- 
icy" as defined by the ,go\'eming board; 
and (e) criticality of operation.) 

Requirement. Logical and equitable 
practices vyill be established which guide 
salary administration in positions and 
employees actions within the jurisdiction. 
(Guide. Pohcies guiding salar\' adminis- 
tration for indjyidual emplo\ees in salary 
range reyisions, reclassification upward or 
downward, appointments, promotions, 
transfers, demotions, suspensions, or re- 
lated actions should show fair and rea- 
sonable concern or the nature of the 
actions they coyer, and reflect consider- 



ation of both employee and managerial 
interests. Interpreti\e consistency should 
be an objcctjye in day-to-day applica- 
tions.) 



leyels, or where other circumstances might Statutory Authority G.S. 126-11. 
dictate reasonable compromise as neces- 
sary to aypid disproportionate damage to 
the oyerall integnt\' of the classification 



and pay plan. (2) Comprehensiye salary 
sun.'eys should be conducted at least an- 
nually to gather data on rates being paid 



for substantially similar work by compet- 
itors. Such surveys need to be designed 
with the geographical area of recruitment 
in mind. While clerical employees and 
some paraprofessional employees are re- 
cruited locally, it is usually necessary to 
recruit regionally, statewide, or e\en na- 
tionally for other paraprofessional and 
many professional and managerial posi- 
tions. (3) It should be recognb.ed that 
the paN' policy of the jurisdiction is ulti- 
mately represented by the position classi- 
fication and salar\ plans. This pay poUcy 
must establish and maintain, insofar as 
feasible, a system of compensation which 
provides a \iable basis for securing and 
maintaining a sufficient, eflectiye work 
force from the labor market. Pay pohc\ 
is estabUshed and maintained through as- 
sessment and reconciliation of several in- 
fluencing factors, which may frequently 
relate as conflict mg demands or con- 
straints. These factors include: (a) re- 
lationships among pc^sitions, as 
estabhshcd through the process of job 
evaluation: (b) external labor market la- 
bor dynainics, in terms of wage and salary 
rates, applicant sources, availability and 
supply: (c) the junsdiction's ability to pa\- 
and compete, in terms of economic con- 



.2403 SYSTEM PORTION III: TR.AIMNG 

General Requirement. F'mployees wiU be 
trained as needed to assure high quahtv per- 
formance. 

(Guide. In addition to proyiding training 
to improye pertbrmance, training should 
be provided to prepare emplo\ees for more 
responsible assignments and to implement 
affirmatiye action plans for equal employ- 
ment opportunity . Training programs 
should include systematic methods for as- 
sessing training needs, proyiding training to 
meet pnority needs, selecting personnel for 
training, and eyaluating the training pro- 
yided.) 

Statutory Authority G.S. I26-I I . 

.2404 S^STF.M PORTION I\: EMPLOYEE 
REL.\TIONS 

General Requirement. L'mplo\ees will be con- 
tinued in good standing as long as they sustam 
satisfactory periormance. Attempts will be made 
with employees to improye inadequate perform- 
ance, and proyisions vyill be made for separating 
employees whose inadequate performance can- 
not be corrected. 
( 1) L'mployee Performance: 
(a) Requirement. LmploNees who have ac- 
quired permanent status will not he dis- 
charged, suspended, or reduced in pay or 
position except for just cause. 
(Guide. ( 1 ) Just cause would normally 
be related to a failing in work perfonnance 
or personal conduct to the extent that the 



7:i NORTH CAROLINA REGISTER May 1, 1992 



292 



PROPOSED RULES 



terms and objectives of emplo\ment arc 
unfulfilled, or persona] beha\ior is detri- 
mental to the imaizc and working re- 
latumships of the jurisdiction. I he degree 
and kind of disciplinary action taken 
needs to be based upon the sound and 
well considered judanent of management. 
(2) No emplo\ee should be subiect to 
separation or other disciplinary actions for 
disclosure, not prohibited by law, of vio- 
lations of laws, rules, or regulations, or 
other improper actions. Prohibitions and 
protections against reprisals should be as- 
sured employees reporting wrongdoing or 
inelticienc\ . (3) I'mpltnees need to be 
e\aluated periodicalK on a systematic and 
job related basis to pro\'ide needed infor- 
mation for supenis(>rs to assess the ade- 
quacy of indn idual emplo\'ees to 
recoaaize their own periormance im- 
provement needs and as a basis for per- 
sonnel actions including promotion. 
recoiniizing or rewarding s uper ior 



formance, and correcting inadequate per- 
formance cannot be corrected.) 
(b) Requirement. Policies will be de\'eloped 
which pro\'ide for fair and uniform proce- 
dures for demotion, transfer, suspension. 
or dismissal of emplo\ees whose per- 
formance continues to be inadequate after 
reasonable elTorts ha\e been made to cor- 
rect iL Such policies shall specil"icall\ 
pro\ ide that in the case of such discipli- 
nar\ action, the emplo\'ee will, before the 
action is taken, be gi\en a statement in 
wnting setting forth in numerical order the 
specific acts or omissions that are the rea- 
sons for the disciplinaPt action, and the 
emploNce's appeal rights. A copy of this 
statement shall be tiled with the count\ 
personnel director. 

(Guide. ( 1) Adequate and specific notice 
of unsatisfactoA periormance should be 
gi\en t£ empknees prior to disciplinary 
action so as to ofter reasonable opportu- 
mt\ for correction. Multiple warnings of 
progrcssi\e se\erit\' are recommended 
where inadequate performance is sus- 
tained. This might include a specific oral 
warning Uom the super\isor in the first 
instance, an oral warning with s;x^cific 
follow-up letter to the empltnee in the 
second, and a final wntten warning with 
full knowledge oi_ t_he department head 
which might include a direct notice to the 
empknee that a continuation of the prac- 
tice ma\ result in dismissal. I'ach ie\el 
of warning should be accompamed bv 



suggestions for corrections and the em- 
plo\ee should be given an opportunity to 
,gi\e reasons for his actions. (2) An em- 
ployee may be suspended witht)ut warn- 
ing for causes related to unacceptable 
personal conduct, pending the g]\ing of 
written reasons, in order to avoid undue 
disruption of work or to protect the safety 
of persons or properts', or for other seri- 
ous reasons.) 
(2| Reduction In Force. Requirement. Re- 
tention of employees in selected separations 
due to curtailment of work or lack of funds 
will be based upon systematic consideration 
of the t\pe of appomtment and other rele- 
vant factors which consider employee con- 
tnbution. 

(Ciuide. (1) No permanent employee of 
good standing should be separated upon re- 
duction in force while there are emergency, 
intermittent, temporary, probationary, or 
tramee employees sening in the same class 
in the junsdiction, unless the permanent 
employee is not willing to transfer to the 
position held bv the non-status emplosee. 
(2) In addition to t\pe of appointment, 
other important and rele\ant factors which 
should be uniformly considered are length 
of service and relati\e etficienc\'. (3) h is 
desirable to pro\ide reinstatement rights 
within a specific time penod to employees 
separated due to reduction m force.) 
(3) Appeals: 

(a) Requirement. Generalh'. in the e\'ent of 
disciplinary action, suspension, and dis- 
missal, the county or area authonty shall 
provide permanent emplo\ees with the 
right to appeal through a timeh' and im- 
partial process, the results of which may 
be recommendatory to or enforceable 
upon the appointing authont\'. The 
grie\ance procedure shall also give access 
to employees with non-disciplinan gnev- 
ances which do not in\ol\ e issues ol in- 
herent management perogative. such as 
budgets, and hours and conditions of 
work. Appeals of alleged discrimination 
in any personnel action on the basis of 
race, color, religion, sex, national ongin. 
political affiliation, age, or disabilit\ bv 
any applicant or emplosee shall result m 
timeh . enforceable decisions. 

(b) Requirement. To assiire impartiality, the 
count\ board of commissioners or area 
mental health authonts shall create an 
appeals board, w hich among other areas 
ol responsibility^ and authont\ that ma\- 
be assigned shall decide aU alleged dis- 



29 i 



7:3 NORTH CAROLI.XA REGISTER May I, 1992 



PROPOSED RULES 



(£l 



crimination appeals. The authority of the 
appeals board for effecting its decisions 
shall be in accordance with the provisions 
of Subparagraph (3)(a) of this Rule, the 
membership of the appeals board shall 
consist of persons appointed by the board 
of county commissioners or area authority 
with due regard to its nature and purpose, 
with the stipulation that at least one 
member be chosen to represent the em- 
ployees of the jurisdiction. Such ap- 
pointments shall not include the county 
attorney, incumbent county commission- 



Li 
ers, incum 



bent 



ibcrs of the area 



i^ 



board, or their family members or rela- 
tives. A county manager or area authority 
director may scr\e as a voting member of 
an appeals board but shall not serve as 
chairperson. 

Requirement. The appeals board shall 
have access in its meetmgs and deliber- 
ations to the counsel of a private attorney, 
not associated or engaged professionally 
in any transaction of the jurisdiction 
which would create a potential conflict of 
interest. 

Requirement. The deliberaticins of the 
appeals board shall be preceded by an 
evidentiary hearing, to be conducted by a 
qualified hearings examiner appointed by 
the jurisdiction, uho shall submit a writ- 
ten disclosure of findings and facts to the 
Board, along with his her recommenda- 
tion. 



(e) Requirement. IVoceedings of appeals 
board shall be recorded. At its discretion, 
the board may furnish a transcript of the 
hearing upon request. Decisions of the 
board shaU be in writing and shall be 
maintained in the county or authority 
personnel office. 

(f) Requirement. An impartial grievance 
procedure which has as its objective the 
timely and logical resolution of all griev- 
ances at the lowest practical point in the 
organization shall be established, with 
right of appeal assured at each step up to 
the county manager or area director for 
all appeals not allegmg discnmination. 
and to the appeals board for all appeals 
alleging discnmination. To the ma.ximum 
extent possible gncvance procedures shall 
include steps to rcsohe discnmination and 
all other types of emplo\ee gnevances 
without recourse to the formal appeals 
process represented by the county man- 
ager or appeals board. 



(Guide. ( 1) Assurances should be pro- 
vided which allow employees to present 
their problems or grievances in accordance 
with the procedures provided by the 
county or area authonty, free from inter- 
lerence, coercion, restraint, discrimination, 
or reprisal. All employees should be fully 
informed of the grievance procedures 
adopted and of their rights and obligations 
thereby. (2) The composition of the 
county or area authority appeals board 
might draw upon community resources in 
a nature consistent with its purpose. 
Persons selected from busmess and indus- 
try who are engaged in the current practice 
of personnel administration, instructors 
of public administration from institutions 
of higher learning, and persons whose 
professional orientation would lend ob- 
jective understanding of employee con- 
cerns would be examples in keeping with 
this purpose. Membership also needs to 
be enhanced by sex and ethnic di\'ersity. 
(3) In the interest of avoiding stipulations 
v\hich yyould work to curtail the employ- 
ee's opportunity to present his version of 
the circumstances and events surrounding 
a griesance, it is suggested that the Rules 
of l-videntiarv Presentation be used dur- 
ing heanngs only if requested by the em- 
ployee. In the absence of such a request, 
the appeals board's evidentiary ruhngs 
should be cfl'ected in a manner favoring 
full disclosure of all pertinent facts. (4) 
The appeals board should have at its dis- 
posal, means for enabling reasonable wit- 
ness expenses to be reimbursed as 
appropnate. (5) The relationship be- 
tween the county or area authorit\' ap- 
peals board and the ci\il court s\stcm as 
to pcnycrs, authority, and legal expecta- 
tion should be explained and clanlied to 
aggrie\ed persons appealing to the appeals 
board.) 



Stalulo/y Authority G.S. 126-1 1. 

.2405 SYSTEM PORTION V: FQl Al. 

EMPl OVMENT OPPT^ / VKFIKM ATIN E 
ACTION 

General Requirement. Fair treatment of appli- 
cants and employees will be assured in all aspects 
of personnel administration without regard to 
race, color, reUgion, sex, national on gin, political 
affiliation, age, or handicap and with proper re- 
gard for their pnvac\" and constitutional nghts as 
citi7ens. 1 his "fair treatment" principle includes 



7:i NORTH CAROLINA REGISTER May 1, 1992 



294 



PROPOSED RULES 



compliance whh the federal equal emplo\mcnt 
opportunit\ and ncndiscnminalion laws. 
( 1 ) 1-qual I mpknment ( )pportunit\ : 
(a) Requirement. Icjual empknment oppor- 
tunitN will be assured tor all persons. 
(Cjuide. ( 1 ) I'roMsions ot the personnel 
s\ stem should assure that no indnidual is 
depn\ed, or othenvise discnmmated 
ai-'ainst. with respect to consideration for 
emploN'ment. compensation, and all other 
terms, conditions, or pn\ ileiies of em- 
ployment. (2) 1-qual opportunitN' applies 
to e\er\' indi\'idual and does not mean 
preferential treatment, unless exceptional 
remedies are necessan' to correct the ef- 
fects of longstanding; discnmination prac- 
tices.) 

Requirement. Prohibitions aijainst dis- 
cnmination consistent with the Ci\il 
Rmhts .Act of J_264 as amended, the Fqual 
Fa\ .Act of 1*^63. the Asje Discnmination 
in l'mplo\ment .Act of 1967 as amended. 
the Rehabilitation Act of 1^)1} as 
amended, and cither relevant statutes \\ ill 
be established and enforced. 



ensure greater utilization of all persons by 
identifying pre\iousl\' underutilized 
groups in the work force, such as women. 



minorities and the disabled, and making 
special efforts touard their recniitment. 



selection, appointment, promotion, de- 
\elopment and upward mobilit\'. 
((juide. The head of the go\eming bodv. 
eg., the chairperson oi \h£. countN' com- 
missioners or chairperson of the area au- 
thority, should s ign the pohc y statement. 



b) 



copies of which should he disseminated 
intemalK and extemalh .) 
(b) Requirement. The junsdiction shall de- 
velop and implement a continuing pro- 
gam of alflrmati\-e action in order to 
assure that all personnel policies and 
practices rele\ant to total emplo\ment in 
the jurisdiction will guarantee equal op- 
portunity for all persons. Also, sufficient 
resources should be de\oted to adequately 
implement an atTirmatue action program. 
1 he program should include: 

(i) Identiiication and elimination of artificial 
barriers to equal emplo\ment opportu- 
(c) Requirement. Retaliation against those nitw 

(ii) Work force anal\sis to determine 



ill 
(a) 



who protest alleged discnrninatum shall 
be prohibited. 

(Cjuide. n_l The Ciyjl Rights .Act of 1^64 
as amended in 19"'2 (L'qual ['mplo\ ment 
OpportunitN' .Act of 19^2) prohibits dis- 
cnmination based on race, color, sex, or 
national origin rmd applies directly to state 
and local go\emments. 1 he 1 qual l'a\ 
Act of 1 '-)63 requires equal pa\ for equal 
le\els of work regardless of sex. The .Age 
Discrimination in 1 mpknment Act of 
1*^67 as amended protects indi\iduaks o\er 
40, and the Amencans with Disabilities 
Act of lQ'-)() gi\'es assurances to the disa- 
bled. The I'niform (juidelines on 1 m- 
plo\ee Selection I'rocedures ( I'-J^S) is also 
important as an interpretne document. 
(2) 1 ederal law prtnides for an exception 
from the general aile prohibiting discnm- 
mation in cases where religion, sex, na- 
tional ongm. or age is a bona fide 
qualifi caticm for 



mpkn ■ 



occupational 
ment. 1 Iowe\'er. court tests and other in- 
terpretations mdicate there are few, if auN'. 
jobs co\'ered here to which this exception 
ma\ be applied.) 
Atfirmati\e .Action: 



Requirement. The governing body will 
adopt a wntten 11 .A A polic\ which 
clearh outlines the governing body s in- 
tent, actions and commitment m regard to 
fclC) and .AA. This policy statement shall 



whether percentages of minonties and 
women employed in various job catego- 
nes are substantially similar Ui percentages 
of those groups ayailable m the relevant 
labor force. Where underrepresentation 
occurs, employment procedures will be 
analyzed to determine the cause. 

(iii) Deyelopment of a systematic action 
plan, with goals and timetables, formu- 
lated to correct any substantial dispanties 
or other problems identified in the work 
force and employment analysis. 

(iv) Penodic evaluation of results to assess 
the effectiveness o£ the atfirmative action 
programs in achiev ing atfinnatn e action 
goals on a timely basis. The affirmative 
action plan should be updated at least ev- 
erv two years. 

(Cjuide. 02 An fclX^ A A officer should 
be designated for the ]unsdiction w ho 
shall have pnmar\ responsibilities for the 
implementation and day to day operation 
of the affirmative action program. (2) 
Work force data can most meaningfully 
be obtained and presented bv job cate- 
gory. Icderal job categones. used in 
submitting FF()-4 reports, are suggested. 
The pnmarv scnirce for labor torce data in 
North Carolina is the N.C. rmplov ment 
Secunty Commission. It^ should be real- 
ized that labor force data from several 



295 



7:3 M)RTH CAROLEXA RECLSTER May I, 1992 



PROPOSED RULES 



(£l 



Qi 



different labor market areas (geograph- 
icaUv) may be needed to measure 
progress, since the jurisdiction likely re- 
cruits on that basis for different types and 
le\ els of jobs. Agency work force anals sis 
and problem identification normally need 
to be based on the percentage of qualified 
persons by race, sex, and ethnic group 
a\'ailable in the rele\ant labor force. 
Where these data are not ayailable, total 
labor force may be used. Work force 
analysis should giye attention to indjyid- 
ual job classification, classification series, 



or occupational groupings as appropriate.) 
Requirement. Management and super\i- 
son.' personnel must be held accountable 
for progress tovyard affrrmathc action 
goals in appropnate circumstances. 
(Guide. A mechanism for re\ie\ving each 
manager's unit of responsibility and each 
supervisor's unit, to discoyer whether 
progress toward impro\cd representation 
of one or more protected groups needs to 
be made, and if so^ if such progress is in 
fact being made, must be implemented. 
Use of annual performance reyiews for 
this purpo-se is acceptable.) 
Workforce Relations Requirement. Per- 
sonnel administration within the junsdiction 
will conscientiously recognize the dignity 



promote means of communications, partic- 
ipation and understanding among all em- 
ployees. 

(Guide. Pro\isions and strategies within the 
personnel system should seek to effect mu- 
tual understanding, participation, and accord 
between management and employees in 
achie\'ing the o\'erall mission of the county 
or area program. When, for \shate\er rea- 
sons, there may occur a breach of under- 



standing in any area, efforts for empathetic 
resolution should be immediately effected.) 

Statutory Authority G.S. 126-11. 

.2406 SYSTEM PORTION \l: POLITICAL 
ACTIVITY 

General Requirement. Fmployees will be pro- 
tected against coercion for partisan political pur- 
poses, and will be prohibited from using their 
official authority for the purpose of interfering 
with or affecting the result of an election or a 
nomination for otTice. 

((juide. Policies on political actiyitv need to as- 
sure that all employees have the right to express 
their \iews as citizens, to pursue their legitimate 
inyohement in the political system, and to \ote; 
that employees not engage in or be subject to 
coercion for political puiposes. and not seek 
candidacy for public office in a partisan election.) 



and \alue of the indiyidual employee and Statutoiy Authoritv G.S. 1 26- 1 1 . 



7:3 NORTH CAROLINA REGISTER May I, 1992 



296 



FINAL RULES 



1 his section contains niles filed for publication in the Sorth Carolina Administrative Code where 
a notice was not required for publication in the Register. Also, the text of final rules will be published 
in this section upon request of any adopting agency. 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

CHAPTER 45 - COMMISSION FOR MENTAL HEALTH, DE\ ELOPMENTAL 
DISABILITIES AND SUBSTANCE ABUSE SER\ ICES 

SUBCHAPTER 45H - DRUG TREATMENT FACILITIES 

SECTION .0200 - SCHEDULES OF CONTROLLED SUBSTANCES 

.0206 SCHEDULE V 

(a) Schedule \' shall consist of the drugs and other substances by whatever official name, common 
or usual name, chemical name or brand name designated, listed in this Rule. 

(b) Narcotic Drugs Containing Nonnarcotic Active Medicinal Ingredients. /\ny compounds, mixture 
or preparation containing any of the following limited quantities or narcotic drugs or salts thereof which 
shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer 
upon the compound, mixture or preparation valuable medicinal quaUties other than those possessed 
by the narcotic drug alone: 

(1) not more than 200 milligrams of codeine per 100 milliliters or per 100 grams. 

(2) not more than 100 milligrams of dihydrocodeine per 100 rrulhiiters or per 100 grams, 

(3) not more than 100 mUhgrams of eth>lmorphine per 100 milliliters or per 100 grams, 

(4) not more than 2.5 milligrams of dipheno.xylate and not less than 25 micrograms of atropine 
sulfate per dosage unit, 

(5) not more than 100 milligrams of opium per 100 milliliters or per 100 grams, 

(6) not more than 0.5 milligrams of difeno.xin and not less than 25 micrograms atropine sulfate per 
dosage unit. 

(c) Stimulants. Unless specifically exempted or excluded or unless listed in another schedule, any 
material, compound, mixture, or preparation which contains any quantity of the foUouing substances 
having a stimulant effect on the central nervous s\stem, including its salts, isomers and salts of isomers: 
Pyro\'alerone - 1485. 

Histori' Xote: Statutory' Authority G.S. 90-8S; 90-93; /43B-/47; 
Eff June 30. 1978; 
Amended Eff. April I. 1992; August /, I9SS; December I, 1987; April I, 1983. 



297 7:3 NORTH CAROLfNA REGISTER May I, 1992 



RRC OBJECTIONS 



1 he Rules Rex'iew Commission (RRC) objected to the following rules in accordance with G.S. 
l43B-30.2(c). State agencies are required to respond to RRC as provided in G.S. l43R-30.2(d). 



AGRICULTLRE 



Plant Industry 



2 NCAC 4SE .0101 - Definitions 
Agency Revised Rule 
Agency Responded 
Agency Withdrew' Rule 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol 

/4A .\CAC 9H .0304 - Sotifying Registered Owner 
No Response from Agency 
Agency Withdrew Rule 

ECONOMIC AND CO.MML>.ITV DEVELOPMENT 

Community Assistance 

4 NCAC /OL .0403 - Size and Use of Grants Made to Recipients 
4 NCAC I9L .0407 - General Application Requirements 

Credit Union Division 

4 NCAC 6C .0407 - Business Loans 
Agency Revised Rule 

ENA IRONMENT, HEALTH, AND NATURAL RESOLRCES 

Coastal Management 

/5A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas 
Agency Responded 
Rule Returned to Agency 
Agency Filed Rule with OA II 

ISA NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing 
Rule Returned to Agency 
Agency Filed Rule with OA II 

ISA NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OA II 
.ISA NCAC 7 J .0302 - Petition For Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OA H 
ISA .\CAC 7 J .0302 - Petition For Contested Case Hearing 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC ^y .0402 - Criteria for Grant or Denial of Permit .Applications 



RRC Objection 10; 17.91 

RRC Objection 10', 17 ,9 1 

No Action 111 19,91 

02120,92 



RRC Objection 12119:91 



No Action 



01/24. 92 
02j20:92 



RRC Objection 04JI6I92 
RRC Objection 04/16192 



RRC Objection 01; 24 92 
Obj. Removed 02/20. 92 



RRC Objection 
No Action 

Eff 

RRC Objection 

Eff 

RRC Objection 

Eff 

RRC Objection 

Eff 

RRC Objection 

Eff 

RRC Objection 



01/24 92 
01/24 92 
01/24 92 
03/01.92 
02/20,92 
03/19/92 
03/31,92 
03/ 1 9; 92 
03/19.92 
04/01 92 
02120 92 
03/19,92 
03/31/92 
03/19 92 
03/19.92 
04;0I 92 

10:17 91 



7:3 NORTH CAROLINA REGISTER May I, 1992 



298 



RRC OBJECTIONS 



ISA SCAC 7\f .0201 - Declaration of General Policy 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAU 
ISA XCAC ,'.V/ .0202 - Policy Statements 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA .\'CAC 7\f .0303 - Policy Statements 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA XCAC 7M .0403 - Policy Statements 

Agency Responded 

Agency Responded 

Agency Revised Rule 
ISA XCAC 7.\f .0901 - Declaration of General Policy 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with 0.4 H 



RRC Objection 


10' 17 91 


Xo Action 


12 1991 


Xo Action 


01 24 92 




01.24 92 


Eff 


03:01 92 


RRC Objection 


10 17.91 


Xo Action 


12.19.91 


Xo A ction 


OF. 24.92 




01:24 92 


Eff 


03.01:92 


RRC Objection 


10 17 91 


Xo Action 


12 19.91 


Xo Action 


0112492 




01 24 92 


Eff 


03 01 92 


RRC Objection 


10 17.91 


Xo Action 


12.19:91 


Xo Action 


01i24:92 


Obj. Removed 


02 20 92 


RRC Objection 


/ 0,17.91 


Xo Action 


I2i 19.91 


Xo A ction 


01:2492 




01 24 92 


Eff 


03 01 92 



En\iroiimentdl Management 

ISA XCAC 2E .0107 . Delegation 
Agency Revised Rule 

Governor's Waste Manaaement Board 



RRC Objection 03 19 92 
Obj. Removed 03 19 92 



ISA XC.-iC I4B .0002 - Definitions 
Agency Revised Rule 



RRC Objection 03 19 92 
Obj. Removed 03 19 92 



Sedimentation Control 



ISA XCAC 4 A .OOOS - Definitions 

Agency Responded 

Agency Revised Rule 
ISA XCAC4C .OOOy - Procedures: 

Agency Responded 



Sotices 



RRC Objection 
Xo .-{ction 
Obj. Removed 
RRC Objection 
Xo .Action 
Obj. Removed 



12 19 91 



01 
02 
12 
01 
02 



24 92 
20 92 

19 91 
24 92 

20 92 



HUMAN RESOURCES 

Facility Services 



10 XCAC 3J .280 1 - Supen-ision 
10 XCAC 3 J .290S - Personal Hvgiene I term 
10 XCAC 3 L .1202 - Case Re\-iew and Plan of Care 
10 XCAC 3i .0102 - Definitions 
.Agency Revised Rule 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
Obj. Removed 



04 16 92 
10 17 91 
04 16 92 
03 19 92 
03 19 92 



Indi\idual and Family Support 

10 XCAC 42E .090S - Personnel: Centers: Homes with Operator Staff 



RRC Objection 01 24 91 



299 



^:3 NORTH CAROLISA REGISTER May 1,1992 



RRC OBJECTIONS 



Agency Responded 

Agency Revised Rule 
10 NCAC42E .0906 - Personnel: Day Care Homes:/ Staff PersonjOp 

Agency Responded 

Agency Revised Rule 
10 NCAC 42E .1207 - Procedure 

Agency Responded 

Agency Revised Rule 
10 NCAC42Z .0604 - Staff Requirements 

Agency Responded 

Agency Revised Rule 
10 NCAC42Z .0901 - Procedure 

Agency Responded 

Agency Revised Rule 

Mental Health: General 

10 NCAC 14S .0102 - Communication Rights 

Agency Responded 
10 NCAC 14S .0103 - Living Environment 

Agency Responded 

LABOR 

Elevator and /Vmusement Device 

13 i\CAC 15 .0402 - Responsibility for Compliance 

LICKNSr\(i BOARDS AM) COMMISSIONS 

Certified Public Accountant Examiners 

* 21 NCAC 8G .0313 - Eirm Name 
Agency Responded 



No Action 
Obj. Removed 
RRC Objection 
No Action 
Obj. Removed 
RRC Objection 
No Action 
Obj. Removed 
RRC Objection 
No Action 
Obj. Removed 
RRC Objection 
No .Action 
Obj. Removed 



02/20:92 
03/19/92 
01/24/92 
02/20i92 
03/19,-92 
01l24i92 
02120:92 
03/191 92 
01/24/92 
02/ 20 i 92 
03/19/92 
01/24/92 
02120/92 
03/19/92 



A RRC Objection 9/19/91 
10/17/91 

ARRC Objection 9/19/91 
10/17/91 



RRC Objection 04/16/92 



RRC Objection 10/17,91 
No Action 12/19/91 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



300 



RULES ISVALIDA TED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued bv the Sorth Carohna Supreme Court, 
Court of Appeals, Superior Court iwhen available ), and the Office of Administrative Hearings \ihich 
invalidate a rule in the \orth Carolina Administrative Code. 



25 SCAC IB .0414 - SITUA TIO.\S I.\ WHICH A TTORMiVS FEES MA Y BE A WARDED 

Robert Roosevelt ReiLly Jr., Administrative Law Judge with the Office of Administrative Hearings, 
declared Rule 25 NCAC IB .0414 void as applied in William Paul Eearrington, Petitioner v. University 
of Sorth Carolina at Chapel Hill. Respondent (91 OSP 0905). 



M)l 7:3 NORTH CAROLINA REGISTER May 1,1992 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrath'e Law Judge 
decisions along with an index to all recent contested cases decisions which are filed under 
North Carolina's Administrative Procedure Act. Copies of the decisions listed in the index 
and not published are available upon request for a minimal charge by contacting the Office 
of Administrative Hearings. (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Com- 
mission 

BDA Board of Dental Examiners 

BME Board of Medical Examiners 

BMS Board of Mortuary Science 

BOG Board of Geologists 

BON Board of Nursing 

BOO Board of Opticians 

CFA Commission for Auctioneers 

COM Department of Economic and Com- 
munity Development 

CPS Department of Crime Control and 

Public Safety 

CSE Child Support Enforcement 

DAG Department of Agriculture 

DCC Department of Community Colleges 

OCR Department of Cultural Resources 

DCS Distribution Child Support 

DIIR Department of Human Resources 

DOA Department of Administration 

DOJ Department of Justice 

DOL Department of Labor 

DSA Department of State Auditor 

DST Department of State Treasurer 



EDC Department of Public Instruction 

EIIR Department of Environment, Health, 

and Natural Resources 
ESC Employment Security Commission 

HAF Hearing /Vid Dealers and Fitters 

Board 
HRC Human Relations Commission 

IND Independent Agencies 

INS Department of Insurance 

EBC licensing Board for Contractors 

MLK Milk Commission 
NHA Board of Nursing Home Administra- 

tors 
OAH Office of Administrative Hearings 

OSP Department of State Personnel 

PHC Board of Plumbing and Heating 

Contractors 
POD Board of Podiatry Examiners 

SOS Department of Secretary of State 

SPA Board of Examiners of Speech and 

Language Pathologists and Audiol- 
ogists 
WRC Wildlife Resources Commission 



CASE \ AMK 


CASE 
NUMBER 


AEJ 


MI.KD 
DAIE 


^Vlyce \V. Pringle 

V. 

Department of I-ducation 


88 OSP 0592 
88 FFO 0992 


Morgan 


03 27 92 


Susie Woodle 

V. 

Department of Commerce, State Ports Authority 


88 OSP 1411 


Mann 


03 25 92 


Fernando Demcco White 

V. 

DIIR, Caswell Center 


89 OSP 0284 


West 


01 10/92 


Cathy Faye Barrow 

V. 

DIIR, Craven County Health Department 


89 DIIR 0715 


Morgan 


03 09 92 


Kenneth W. White 

V. 

Employment Security Commission 


90 OSP 039(1 


Bccton 


01 13 92 



7:3 NORTH CAROLINA REGISTER May I, 1992 



302 



CONTESTED CASE DECISIONS 



CASK N \MK 


(ASK 
MMBER 


A I. J 


KILKD 
DATE 


Craig S. Lun, 

V. 

Fmployment Security Commission 


90 OSP 0391 


Becton 


01 13 92 


Jolcne H. Johnson 

V. 

DHR. ni\"ision of Medical Assistance 


90 DHR 0685 


.Morgan 


02 21 92 


Joseph V . Nunes 

V. 

DHR. Division of Social Sen.-ices, CSF 


90 CSF 1036 


Morgan 


04 15 92 


Sgt. Carl lidmunds 

V. 

DHR. Division of Social Ser\'ices. CSf' 


90 CSF 1135 


Nesnovv 


02 04 92 


Rafael f-igueroa 

V. 

DHR. Division of Social Ser\'ices, CSF 


90 CSF 1138 


Morgan 


03 30 92 


Sammie F. Frazier 

\ . 

DHR. Division of Social Services. CSI: 


90 CSF 1167 


Morgan 


03 24 92 


Richard A. Bovett 

V. 

DHR. Division of Social Services. CSF 


90 CSF 1184 


Morgan 


03 30 92 


Fance .McQueen 

V. 

DHR. Division of Social Services, CSF 


90 CSF 1204 


Morgan 


03 30 92 


Kermit Finney 

V. 

Department of Correction 


90 OSP 1380 


Morrison 


02 12 92 


Farry D. Oates 

V. 

Department of Correction 


90 OSP 1385 


Becton 


04 06 92 


Fernando Guarachi 

V. 

DHR. Division of Social Sep,ices. CSF 


90 CSF 1393 


Morgan 


04 07 92 


Jerry Odell Johnson 

v. 

Sheriffs' Fducation & Training Standiirds Comm 


W DO J 1411 


Morgan 


01 09 92 


Stoney W. & Darlene F. Thompson 

V. 

I^epartment of Fnvironment. Health. & Natural Resources 


Ql FUR 0003 


West 


1 06 92 


Gloria Jones Medbill 

V. 

Children Special Health Services 


Ql FHR (1142 


.Morgan 


03 1 1 92 


Willie C. Rone 

V . 

DHR. Division of Social Services. CSF 


^T| CSF 0166 


Morgan 


04 13 '^2 


Thomas Such 

V. 

FHR and William W. Cohey Jr. 


91 OSP 0202 


Becton 


02 20 92 



30i 



:3 NORTH CAROLINA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



CASE >AME 


CASE 
MMBER 


ALJ 


KILEI) 
DATE 


N.C. Human Relations Comm. on behalf of Deborah /Mien 

V. 

Charles Watkins 


91 HRC0204 


Morrison 


03/17 92 


Cindy Gale Hyatt 

V. 

Department of Human Resources 


91 DHR 0215 


.Morgan 


02,27,92 


Glisten L. Morrisey 

V. 

Bd of Trustees/Teachers' & St Fmp Retirement Sys 


91 DST0232 


West 


02,03,92 


Anthony Caldwell 

V. 

Juvenile I;\aluation Center 


91 OSP0259 


Morgan 


03,T2.92 


Kenneth R. Downs, Guardian of 
Mattie M. Greene 

V. 

Teachers' & St Emp Comp Major Medical Plan 


91 DST 0261 


Gray 


02, 20 92 


Deborah W. Clark 

V. 

DHR, Dorothea Dix Hospital 


91 OSP0297 


Nesnow 


Of 16 92 


Wade R. Bolton 

V. 

DHR, Division of Social Services, CSE 


91 CSE 0312 


Mann 


01/14,92 


Betty 1 . Rader 

V. 

Teachers' & St Emp Major Medical Plan 


91 DST 0330 


Morgan 


01 10 92 


Marcia Carpenter 

V. 

UNC - Charlotte 


91 OSP 0346 


Mann 


03,12 92 


James /Vrthur Lee 

V. 

NCr Crime \'ictims Compensation Commission 


91 CPS 0355 


Chess 


03 05 92 


.Michael Danvm White 

V. 

Department of Environment, Health, & Natural Resources 


91 OSP 0413 


Morrison 


02,14 92 


Curtis Wendell Bigelow 

V. 

CCPS, Division of State Highway Patrol 


91 OSP 0418 


West 


03 10 92 


Alcoholic Beverage Crontrol Commission 

V. 

Hilsinger Enterprises, Inc., t a The Waterin Hole 


91 ABC 0442 


Gray 


01,10 92 


PenuN Whitfield 

V. 

Pitt County Mental Health Center 


91 OSP 0465 


Gray 


01 08 92 


Scmor Citizens Home Inc. 

V. 

DHR, Division of Facility Senices, licensure Section 


91 DHR 0467 


Gray 


02,18,92 



7:i NORTH CAROLINA REGISTER May I, 1992 



304 



CONTESTED CASE DECISIONS 



CASE NAMK 


( ASE 
NLMBEK 


ALJ 


FII.KI) 
DA IE 


Alcoholic Beverage Control Commission 

V. 

F\erett Lee Williams Jr., t a Poor Boys Gameroom 


91 ABC 0531 


Morrison 


01 31 92 


Jonathan Russell McCra\ey, t, a F:ncore 

V. 

Alcoholic Beverage Control Commission 


91 ABC 0534 


.Morrison 


02 04 92 


Dorothy "Cns" Crissman 
Department of I'ublic Instruction 


91 OSP0581 


Morrison 


04 03 92 


Horace Britton Askew Jr. 

V. 

Sheriffs' Fducation & Training Standards Comm 


91 DOJ 0610 


ReiUy 


01 22 92 


Roy L. Keever 

V. 

Department of Correction 


91 OSP0615 


West 


02 26 92 


Ten Broeck Hospital (Patient c 110587, 

Medicaid ii 124-24-4801-0 
Ten Broeck Hospital (Patient =110538, 

Medicaid ??240334254S) 
Ten Broeck Hospital (Patient #110788, 
Medicaid #900- 12-6762-T) 
\. 
DHR. Di\ision of Medical ,As5istance 


91 DHR 0618 
91 DHR 0429 
91 DHR 1265 


Morrison 


04 OS 92 


Larr> .Madison Chatman, t a larry's Con\enient Store 

V. 

-Mcoholic Beverage Control Commission 


91 ABC 0626 


Cirav' 


02 20 92 


Cecil Leon Neal 

V. 

Department of Fconomic & Communit\ Development 


91 OSP0648 


Mann 


02 07 92 


D-ACj, I'ood & Drug Protection Div, Pesticide Section 

V. 

D. Carroll \'ann 


91 DAG 0654 


Momson 


01 15 92 


Kidd's Day Care and Preschool 

V. 

Child I5ay Care Section 


41 DHR 0666 
91 DHR 0666 


Becton 


03 25 92 
()4 10 92 


.Mary lisdale 

V. 

Hyde County Health Department and FHR 


91 FHR 0679 


Morgan 


03 23 92 


Alcoholic Beverage Control Commission 

V. 

Kenneth Richard Cooper, t a Silvers 


91 ABC 0680 


Becton 


02 26 92 


Sarah Linda Hankins 

V. 

.\lcoholic Beverage Control Commission 


91 ABC 0688 


Mann 


02 27 92 


Keith HuU 

V. 

DHR - Division of .Medical Assistance 


91 DHR 07tl7 


Chess 


02 27 92 



305 



7:3 NORTH CAROLLXA REGISTER May 1, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
MMBER 


AU 


FILED 
DAIE 


John E. Canup 

V. 

DHR, Division of Social Services, CSE 


91 CSE 0759 


Reilly 


01 13,92 


Falcon Associates, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 0767 
91 EHR 0768 


West 


01,06,92 


Michael F. Stone 

V. 

Bd of Trustees Local Go\'t Fmp Retirement Sys 


91 DST0771 


West 


02, 24 92 


Ruben Gene McLean 

V. 

Alcoholic Beverage Control Commission 


91 ABC 0772 


Nesnow 


01 30,92 


Bobby McEachem 

v. 

Fa\ette\ille State L'niversity 


91 OSP0839 


Gray 


02 06 92 


Singletree, Inn 

V. 

LTIR, and Stokes Count\ Health Department 


91 EHR 0840 


Nesnow 


01 16 92 


Henr\ B. Bamhardt 

V. 

Mt Pleasant \'ol Eire Dept, St Auditor' Firemen's 
Rescue Squad Workers' Pension Fund 


91 DSA 0843 


Reilly 


01 29 92 


Mackey L. HaU 

V. 

DHR, Division of Social Services, CSE 


91 CSE 0854 


Reilly 


01 17,92 


Gloria J. Woodard 

V. 

Di\ision of Motor \'ehicles 


91 OSP0855 
91 OSP 0855 


Mann 


04 09, 92 
04 1 3 92 


Kay I ong 

V. 

Department of Human Resources 


91 DHR 0873 


Reilly 


03 1 7 92 


Alcoholic Be\erage Control Commission 

V. 

Mack Ray Chapman. I a Ponderosa lounge 


91 ABC 0887 


Morrison 


01 31 92 


Joseph W. De\lin Jr., Johnson Brothers CaroUna Dist 

V. 

.Alcoholic Beverage Control Commission 


91 ABC 0890 


West 


02 1 1 92 


Ossie Beard 

V. 

FUR & Wastewater Treatment Plant Certification Comm. 


91 IHR 0893 


Nesnow 


03 12 92 


.Alcohohc Be\erage Control Commission 

V. 

Trinity C. C. Inc., t a Trinity College Cafe 


91 ABC 0915 


West 


02 11 92 


N.C. Alcohohc Be\'erage Control Commission 

V. 

Jessie Pendergraft Rigsbee, T/A Club 2000 


91 ABC 0919 


\\'est 


03 12 92 



7.-3 NORTH CAROLINA REGISTER May 1, 1992 



306 



CONTESTED CASE DECISIONS 



(ASK N AMK 


CASK 
NLMHKR 


AI.I 


Hl.KD 
DAIF. 


Alcoholic Beverage Control Commission 

V. 

Cedric Warren Fdwards, t a Great, American Food Store 


91 ABC 0923 


Becton 


02 26 92 


Department of I'nvironment, Health, & Natural Resources 

V. 

[lulls Sandwich Shop, Andy Hull 


91 EHR 0936 


West 


01 09 92 


Betty Davis d b a ABC Academy 

V. 

DHR, Division of I-acility Services. Child Day Care Section 


91 DHR 0955 


Morrison 


01,31,92 


Thomas J. llailcy 

V. 

[■'IIR and Rockingham County Health Department 


91 EHR 0957 


Becton 


01 15 92 


Ronald W'averly Jackson 
CHR, Division of Maternal & Child Health. WIC Section 


91 EHR 0963 


Gray 


02 24 92 


Century Care of Laurinburg, Inc. 

\. 

DHR, Di\ision of Facility Services. I icensure Section 


91 DHR 0981 


Gray 


03 24 92 


Herbert R. Clavlon 

V. 

DHR. Di\ision of Social Sen, ices, CSE 


91 CSE 1000 


Mann 


04 02 92 


Roy Shealey 

V. 

Victims Compensation Commission 


91 CPS 1002 


Morrison 


01 31 92 


Willie Brad Baldwin 

\-. 

DHR, Division of Social Sen.ices, CSE 


91 CSE 1020 


Reilly 


01 28 92 


Clinton Dauson 

\. 

N.C. Department of Iransportation 


91 OSP 1021 


Mann 


03 05 "^2 


Benjamin C, Dawson 

v. 

Department of Correction 


91 OSP 1025 


West 


02 1 8 92 


Faulette R. Smith 

V. 

DHR. Division of Social Services. CSE 


91 CSF 1(126 


Reilly 


02 27 92 


Scot Dawson 

V. 

[department of I abor 


91 DOl 1031 


West 


02 24 92 


Fuis A. Rosario 

\-. 

DHR, Di\ision of Social Services, CSE 


91 CSE 1046 


Morrison 


03 03 92 


Randy Quinton Ring 

\. 

CCFS. State Highway Fatrol 


91 OSP 1064 


Gra\' 


03 24 ')2 


William H. Hogsed 

\. 

DHR. Division of Social Services. CSF 


91 CSF 1070 


Nesnow 


03 16 02 



i07 



7:3 NORTH CAROLINA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


AL.I 


FILED 
DAIE 


David L. Brown 

V. 

DHR, Division of Social Senices, CSE 


91 CSE 1074 


Morrison 


03,3 1,92 


Donald \I. Washington 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1078 


Morrison 


03;04;92 


Melvin L. Miller Sr. 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1084 


Morrison 


03,16 92 


Bobby G. Evans 

V. 

DHR, Division of Social Services. CSE 


91 CSE 1094 


Reilly 


01, ,'13/92 


William Louis Timmons 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1104 


Mann 


02 18 92 


Ra\ mond Junior Cagle 

V. 

DHR, Division of Social Ser\ices, CSE 


91 CSE 1123 


Mann 


03/30,'92 


Richard H. Murray 

V. 

Department of Human Resources 


91 CSE 1134 


Reilly 


01 13,92 


Pathia Miller 

V. 

DHR, Division of Eacility Services, C^hild Day Care Section 


91 DHR 1135 


Mann 


03 31 92 


Atlantic Enterprises, Inc. 

V. 

Department of Environment. Health, & Natural Resources 


91 EHR 1136 


Reilly 


01 23,92 


Theresa M. Sparrow 

V. 

Criminal Justice Education & Training Standards Comm 


91 DOJ 1138 


Mann 


02 04 92 


Darrel D. Shields 

v. 

DHR. Division of Social Services, CSE 


91 CSE: 1141 


Morgan 


03 30 92 


James A. Hinson 

V. 

DHR. Division of Social Services. CSE 


91 CSE, 1154 


Mann 


02 18 92 


George H. Parks Jr. 

V. 

DHR. Division of Social Services. CSE 


91 CSE 1157 


Momson 


01 27 92 


Adnan Chandler Ilarley 

V. 

DHR. Division of Social Services. CSE 


91 CSE 1180 


Nesnow 


02 10 92 


Billy J. Hall 

V. 

DHR. Division of Social Services. CSE 


91 CSE 1182 


Ncsnovv 


02 10 02 


Donaldson L. Wooten 

v. 

DHR. Division of Social Services. CSl 


91 CSE 1189 


Reilly 


03 13 92 



7:3 NORTH CAROLINA REGISTER May 1,1992 



30S 



CONTESTED CASE DECISIONS 



(ASK NAMF, 


CASK 
NLMBKR 


A K.I 


Fll KD 
DATK 


William P. Reid 

V. 

DHF^, Division of Social St.'r\ices, CSE 


91 CSE 1193 


Nesnow 


02, 04, 92 


Ronald Cj. Bolden 

V. 

DUR, Division of Social Services, CSE 


91 CSE 1208 


Gray 


02, 26;92 


Wayne Phillip Irby 

V. 

DllR, Division of Social Sen'ices, CSF 


91 CSE 1211 


Nesnow 


02,04,92 


Tony Hollingsworth 

V. 

DIlR, Division of Social Senices, CSE 


91 CSE 1212 


Nesnow 


02,10,92 


Russell G. Ginn 

V. 

Department of Correction 


91 OSP 1224 


Reilly 


02 14 92 


Angela McDonald McDougald 

V. 

DIIR, Division of Social Services, CSE 


91 CSE 1227 


Nesnow 


02 28,92 


Senng 0. \lb>e 

V. 

DUR, Division of Social Services, CSE 


91 CSE 1228 


Mann 


03 11,92 


Arthur I homas McDonald Jr. 

v. 

DIIR, Division of Social Services, CSE 


91 CSE 1252 


Morrison 


03,31,;92 


Stanford I'arl Kern 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1255 


Nesnow 


02 04, 92 


Gene Weaver 

V. 

DIIR, Division of Social Services, CSE 


91 CSE 1264 


ReiUy 


03 25 92 


James l . White 

v. 

I^IIR, Division of Social Services, CSE 


91 CSE 1271 


(iray 


02 27 92 


Ronald Brown and Regina Brown 

V. 

DIIR, Di\ision of F-acihty Services 


91 DHR 1278 


Becton 


02 25 92 


Samuel Armwood 

V. 

David Brantley, Wa\ne C\)unty Clerk of Superior Court 


91 CSE 1285 


Reilly 


02 11 92 


Enos \1. Cook 

V. 

DIIR, Di\ision of Social Services, CSE 


91 CSE 1303 


Momson 


04 13,92 


Raymond \'aughan 

V. 

DIIR, Division of Social Services, CSE 


91 CSE 1304 


Reilly 


03 09 92 


Stanle\' W'avne Gibbs 

v. 

I'li/abeth Cit_\ State I'niversity 


91 OSP 1318 


(jray 


01 14 'il 



309 



7:3 NORTH CAROLINA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


AIJ 


HI ED 
DAIE 


David Martin Strode 

V. 

DHR, Division of Social Ser\ices, CSE 


91 CSE 1327 


Morgan 


03,19,92 


D. C. Bass 

V. 

Department of Crime Control and Public Safety 


91 OSP 1341 


Chess 


04,07,92 


Steveason M. Bailey 

V. 

McDowell Technical Community College 


91 OSP 1353 


Morrison 


01/28,92 


Gar>' N. Rhoda 

V. 

Department of Correction 


91 OSP 1361 


Nesnow 


01,31,92 


William A. Sellers 

V. 

DHR, Di\ision of Social Services, CSE 


91 CSE 1395 


Gray 


04 01.92 


Marc D. Walker 

V. 

CCPS, Division of State Highway Patrol 


91 OSP 1399 


Morrison 


03 16 92 


Serena Gaynor 

v. 

DHR, Division of Vocational Rehabilitation 


91 OSP 1403 


Gray 


03 02,92 


Betty Davis, D;B A ABC Academy 

v. 
DHR, Division of f-acility Ser\ices, Child Day Care Section 


91 DHR 1408 


Chess 


03,30,92 


Charles R. WeUons II 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 1418 


West 


02 25,92 


Charle>- Joe MiUigan 

v. 

Bd of Trustees Local Gov't Fmp Retirement Sys 


91 DST 1424 


Gray 


02,27 92 


Roy Blalock, Deborah Eakins, John Gordon Wright 

V. 

UNC -Chapel Hill 


91 OSP 1429 
91 OSP 1430 


Cjray 


03,13,92 


James R. lath 

V. 

Crime Victims Compensation Commission 


91 CPS 1451 


Morrison 


04 15 92 


Ollie Robertson 

V. 

Crime Victims Compensation Commission 


92 CPS 0002 


Morrison 


1)4 15 92 


New Bern-Craven County Board of I'ducation, 
a Statutory Corporation of North Carolina 

V. 

The Honorable Harlan E. Boyles, State Treasurer, 

The Honorable Fred W. Talton, State Controller, 

Ihe Honorable William W. Cobey, Jr., Sec. of EHR, 

Dr. George T. Everett, Dir., Div. of En\ironmental Mgmt. 


92 EHR 0003 


Reilly 


03 13 92 



7:3 NORTH CAROLINA REGISTER May I, 1992 



310 



CONTESTED CASE DECISIONS 



CASF NAME 


CASE 
MMBEK 


AIJ 


FILED 
DATE 


lUen Allgood, The Red Bear Lounge, Inc., 
4022 North Main St., High Point, NC 27265 

V. 

Alcoholic Beverage Control Commission 


92 ABC 0007 


Chess 


04 07 92 


Fnvate Protective Services Board 

V. 

Robert R. .Missildine, Jr. 


92 DOJ 0025 


Becton 


03 23 92 


Cmdy G. Bartlett 

V. 

Department of Correction 


92 OSP 0029 


Reilly 


03 16 92 


Mr. Kenneth L. Smith, Pitt County Mart, Inc. 

V. 

EHR, Division of Maternal & Child Health, WIC Section 


92 EHR 0085 


Becton 


04 1 5 92 


Kurt llafner 

v. 

N.C. Retirement System et al. 


92 DST 0094 


Gray 


03 04 92 


Roy Blalock, Deborah 1-akins, John Gordon Wright 

v. 

LNC- Chapel IIUl 


92 OSP 0096 


Gray 


03 13 92 


Youth Focus, Inc. (MID # 239-23-0865T) 

v. 

DUR, Division of Medical Assistance 


92DHR 0110 


Gray 


02 26 92 



ill 



7:i NORTH CAROLINA REGISTER May 1, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ^VA^'^E 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

90 OSP 1385 



LARRY D. OATES, 
Petitioner 



N.C. DEPARTMENT OF CORRECTION, 

Respondent 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on November 5, 1991 
and November 6, 1991, in Raleigh, North Carolina. At the conclusion of the hearing, the parties 
elected to exercise their right to file written submissions as provided in N.C. Gen. Stat. 150B-34(b). 
The record closed on February" 21, 1992, when the parties filed their post-hearing submissions. 

APPEARANCES 

Petitioner: John R. Keller, Attorney, Eastern Carolina Legal Services, Goldsboro, North Carolina 

Respondent: Deborah L. McSwain, Associate Attorney General, North Carolina Department of 
Justice, Raleigh, North Carolina 

Lavee Jackson, Assistant Attorney General, North Carolina Department of Justice, 
Raleigh, North Carolina 

ISSUE 

Whiether the Respondent had just cause to dismiss the Petitioner from his employment with the De- 
partment of Correction. 

EXHIBITS 

Exhibits list is omitted from this publication. A copy may be obtained by contacting the Office of 
Administrative Hearings. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and ad- 
missible evidence, it is found as a fact that: 

1. Central Prison is a ma.ximum security prison ser\'ing an inmate population of approximately 1 100 
and employing approximately 675 staff. 

2. The Petitioner, at the time of his suspension and subsequent dismissal, was a Correctional Sergeant 
on the second shift in Unit Three at Central Prison, and he was responsible for the supervision 
of five Correctional Officers and 260-275 inmates. Correctional staff, particularly supervisors, must 
lead by example. The integrity and credibility of staff are critical to maintaining inmate control. 

3. The Petitioner was first employed by the Respondent beginning July 1. 1985 as a Correctional 
Officer. He worked in that capacity through July 31, 1988. 

4. The Petitioner was promoted to Correctional Sergeant effective August 1, 1988. He worked in that 
capacity through the date of his termination, August 28, 1990. 



7:3 NORTH CAROLINA REGISTER May 1, 1992 



312 



CONTESTED CASE DECISIONS 



5. The Petitioner received regular performance appraisals on July 1, 1988: July 1 1, 1989; and January 
29, 1990. These appraisals were performed b\ the Petitioner's super\'isory Lieutenant. The 
Petitioner received an overall performance rating of "Meets Expectations" or "Exceeds Expecta- 
tions" in all three appraisals. The latter two appraisals were performed by Lt. J. A. Moore, the 
Petitioner's super\'isor at the time of his dismissal. 

6. Central Prison has a kitchen and adjacent inmate dining area. The kitchen staff arri\'e at approx- 
imately 3:30 a.m. and leave between 7:00 to 7:30 p.m. The kitchen is accessible to correctional 
staff when the kitchen staff are present. \\Tien the kitchen staff are not present, the kitchen is 
considered closed. Correctional staff have access to the kitchen when it is closed by requesting a 
key from the Correctional Officer assigned to Station C-4. 

7. On May 7, 1990, Lt. J. A. Moore was "Acting Unit Three Manager" and the Petitioner's super\'isor. 

Lt. Moore worked 8:00 a.m. to 5:00 p.m. It was reported to Lt. Moore that the second shift staff 
were sending inmates to get food from the kitchen for the staff's consumption. 

8. Lt. Moore wrote a memorandum to his staff stating that it was strictly against policy for staff to 
send inmates to the kitchen to get food for the staff's consumption and such conduct would subject 
anyone caught to discipUnary action. The memorandum was placed m each staff member's mail 
box and was also posted in Unit Three. 

9. Lt. .Moore did not report the information he recei\'ed about staff taking food from the kitchen for 
their personal consumption to his superiors. Although Lt. Moore had the authority to initiate an 
investigation or disciplinary action, he believed it was a sufficient response that the practice, if oc- 
curring, merely cease. Lt. Moore felt that it was acceptable that if some officers had been engaging 
in wrongful conduct, these otTicers should be gi\en a chance to stop their actions. 

10. The Petitioner received a copy of Lt. Moore's memorandum in his mailbox. The Petitioner in- 
terpreted the memorandum to mean that taking food from the kitchen for personal consumption 
was wrong and was to cease. 

1 1. The practice of taking food from the kitchen for personal consumption b\' correctional personnel 
did not origmate with the Petitioner. 

12. The Petitioner has observed Correctional Officers being sent to the kitchen when the kitchen was 
closed to get food for the personal consumption of correctional staff. WTiile a Correctional Officer, 
the Petitioner, was sent by his superiors to the kitchen w hen the kitchen was closed to bring food 
to his unit. 

13. As a Correctional Officer, the Petitioner did not consider this practice to be wrong because he never 
gave it any thought at all. It appeared to be a common practice, and he was unaware of any 
prohibitions against this practice or of any disciplinarv' actions being taken against anyone engaging 
m the practice. 

14. The Petitioner first ate prison food himscff without paymg for it in the Spring of 1990. 

15. Pnor to May 7, 1990. the Petitioner directed his Correctional OtTicers to bring food to the Unit 
for personal consumption, went hunseU to the kitchen to bring food back to the Unit for personal 
consumption, and ate food brought from the kitchen. I'his food was obtained when the kitchen 
was closed and was not purchased. This practice occurred three to four tunes a week. 

16. The Petitioner was aware of the Respondent's regulation that states that "No emplosee will con- 
sume or use equipment, facilities, or supplies, mcludini; scrap matenal. except as he ma\ be legally 
entitled to do." 5 NCAC 2.\ .02U2(e)(2). 

17. The Petitioner was never mformed prior to May 7, 1990 that taking food from the kitchen for 
personal consumption violated 5 NCAC 2.-\ .0202(e)(2). 



5n 7:3 NORTH CAROLINA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



18. Prior to May 7, 1990, the Petitioner did not believe that food constituted a "supply" as used in 5 
NCAC 2A .0202(e)(2). 

19. The Petitioner used specific inmates to perform special assignments or janitorial tasks within the 
unit. The Petitioner would reward these inmates with food: sandwich meats and salads. The 
Petitioner would go to the kitchen to get these food items for the inmates. The food was brought 
to the unit office. The Petitioner gave these food rewards approximately once a week. This 
conduct continued to occur after May 7, 1990. 

20. Because "O" and "K" dorms received new admissions and housed medical outpatients, inmates 
were arriving at Unit 3 during all hours of the second shift. Inmates who missed the evening meal 
at Central Prison were permitted to eat their meal upon returning to the prison. New admissions 
were also fed in the unit. 

21. The receiving department was responsible for determining if an inmate needed to receive a meal. 
The Petitioner would take responsibility for feeding any iamate who arrived in Unit 3 who stated 
that he had not had his evening meal. 

22. Several inmates in Unit 3 ate their evening meals in the unit. On average, eight inmates ate their 
meals in the unit daily. 

23. The Petitioner ordered meals from the kitchen for the inmates who ate in the unit. The Petitioner 
routinely ordered extra dinner trays in anticipation of inmates who would require a meal after the 
kitchen closed. 

24. These meals were distributed to the iiunates by the Correctional Officers from the Correctional 
Officers' office. Diiuier trays not distributed were placed in the office the Petitioner shared with 
other sergeants. 

25. Correctional Officer Sorrel! testified that on one occasion after May 7, 1990, he accompanied an 
inmate to the kitchen to pick up juice for the inmates in Unit 3. While in the kitchen the inmate 
requested that he be permitted to take a watennelon. Sorrell offered no testimony that the 
Petitioner authorized this request or knew about this request. 

26. The Petitioner did not authorize this inmate to get a watermelon. The Petitioner did not know 
that this inmate had requested that he be allowed to get a watermelon. 

27. Officer Sorrell testilied that on the same evening that the inmate requested to take a watermelon, 
watermelon was eaten by the inmates at the bottom of the steps near Station C-3. Sorrell offered 
no testimony that the Petitioner ate any of this watemiclon or knew about the watennelon being 
eaten by the inmates. 

28. The Petitioner did not eat any watermelon at any time during the incident described by Sorrell. 
The Petitioner had no knowledge that watermelon was being eaten by inmates near Station C-3. 

29. Correctional Officer Butler testified that he accompanied an inmate to the kitchen on one occasion 
after May 7, 1990. On that occasion the inmate took a prepared tray from the kitchen and brought 
it to the sergeant's office. Butler offered no testimony the Petitioner instructed the inmate to pick 
up this tray. Butler did not know why the tray was brought to the sergeant's oflicc. Butler did 
not know who was in the sergeant's office at that time. Butler did not know what happened to 
that tray that evening. Butler did not see the Petitioner eat the food on that tray. 

30. The Petitioner did not instruct the inmate to get the tray. The Petitioner did not take this tray for 
his personal consumption. 

31. Officer Butler testified that on one or two occasions after May 7, 1990, he saw the Petitioner eating 
a sandwich in his otTice. Butler testified that he believed the sandwiches were from the kitchen 
because of the size of the sandwiches. 



7:3 NORTH CAROLINA REGISTER May I, 1992 314 



CONTESTED CASE DECISIONS 



32. The size of a sandwich is not competent evidence that the sandwich was more Ukely to have been 
taken from the Central Prison kitchen than brought from home or purchased elsewhere. 

33. The Petitioner did not consume any sandwiches taken from the Central Prison kitchen after .May 
7, 1990. 

34. Correctional Sergeant McLaughlm testified that on one occasion he discovered watermelon nnds 
in the trash basket in the sergeant s office after May 7. 1990. McLaughlin did not see the Petitioner 
at an\' time during the evening he disco\'cred the watermelon rinds, not did he know whether the 
Petitioner w as even working that evening. 

35. The Petitioner did not participate in eating watermelon in the sergeant's office. The Petitioner had 
no knowledge of watermelon being eaten in the sergeant's office or watermelon rinds bemg placed 
in the trash basket in the sergeant s office. 

36. Sgt. McLaughlin testified that on several occasions he saw lunch meats and cheese in the sergeant's 
office. These meats and cheese were unwrapped in styrofoam containers similar to the containers 
used by the Central Prison kitchen. 

37. Sgt. McLaughlin did not know who brought the meats and cheese into the sergeant's office. 
McLaughlin did not testify that he saw the Petitioner eat any of the meats or cheese. 

38. Lunch meats and cheese were used by the Petitioner to reward inmates for completing special as- 
signments and janitorial tasks. 1 he Petitioner did not take lunch meats or cheese from the kitchen 
for his own personal consumption after May 7, 1990. Ihe Petitioner did not eat any lunch meats 
or cheese taken from the kitchen after .May 7, 1990. 

39. Sgt. .McLaughlin and Correctional Officer Ricky BeU testified that on one occasion in June. 1990, 
the Petitioner offered each of them a salad. The salad appeared to be from the Central Prison 
kitchen. Neither officer testified that the Petitioner was eating any of the salads. 

40. The Petitioner did not take a salad from the kitchen for his own personal consumption. The 
I'etitioner did not eat a salad taken from the kitchen after May 7, 1990. 

41. Officer Bell testil"ied during rebuttal testimony that on the same night that the Petitioner offered a 
salad to Sgt. .McLaughlin, the Petitioner appeared to be finishing eating a sandwich that was con- 
structed from prison food, and there were also many sandwiches stored in an opened chest in the 
sergeant's office. 

42. Sgt. McLaughlm did not mention seeing any sandwiches in the sergeant's office the night he was 
offered a salad b_\' the Petitioner. 

43. Based upon the inconsistencies in his recollection and upon his demeanor while testifying, the 
undersigned finds that BeU was not a credible witness and his testimony that he saw the Petitioner 
eating a sandwich which was made from supplies taken from the Central Prison kitchen was not 
belie\able. 

44. Lt. Donald R. Salmon. Internal .Vtfairs Officer at Central Prison, received infonnation about the 
second shift stalf taking food from the kitchen after it was closed in August of 1990. lie was in- 
structed b\' Bobb\' R. Watson, then Deputy \^'arden. to investigate. 

45. It. Salmon talked with the Petitioner on August 24, 1990. The Petitioner admitted during his 
discussion with Lt, Salmon that he had eaten food brought from the kitchen after the kitchen was 
closed and had instructed staff to get food from the kitchen for personal consumption. In his 
discussion with Lt. Salmon, the Petitioner did not clarily that the conduct admitted to occurred 
before .May 7. 1990. Lt. Salmon's report summarizmg the Petitioner s statements makes no dis- 
tinction about whether this conduct occurred before or after .Mav 7, 1990. 



315 7:3 NORTH CAROLINA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



46. Lt. Salmon offered no testimony that the Petitioner admitted to him that he had eaten food, gone 
to get food, or instructed staff to get food after May 7, 1990. 

47. The Petitioner never stated to Lt. Salmon that after May 7, 1990, he ate food from the kitchen, 
took food from the kitchen for personal consumption, or instructed staff to take food from the 
kitchen for personal consumption. 

48. Lt. Salmon completed his investigation on August 27, 1990 and submitted his report to Warden 
Dixon that same day. 

49. Warden Dixon circulated Lt. Salmon's report to Watson and management ser\ices administrator, 
Bobby L. Reardon. They decided that the Petitioner should be called into a conference with them 
the following day. 

50. The Petitioner was called to Warden Dixon's office on August 28, 1990. The Petitioner was not 
informed about the purpose of the meeting prior to meeting with Warden Dixon. This meeting 
was the Petitioner's predismissal conference. Present for the meeting were Dixon, Watson, 
Reardon, and the Petitioner. 

51. L'pon entering the Warden's office, the Petitioner was immediately aware that the meeting involved 
a serious matter because the three highest ranking individuals at Central Prison were present. The 
Petitioner felt ncr\ous and became increasingly scared and upset as the conference progressed. 

52. Warden Di.xon asked the Petitioner about the taking of food from the kitchen for personal con- 
sumption. The Petitioner readily admitted that he had taken food from the kitchen and that he 
had instructed staff to take food from the kitchen. The Petitioner acknowledged that what he had 
done was wrong, and he was apologetic. 

53. Di.xon, Watson, and Reardon testified that Warden Dixon asked the Petitioner if he had taken food 
from the kitchen for personal consumption after May 7, 1990. These three witnesses testified that 
the Petitioner admitted that he had. 

54. The Petitioner testified that he did not recall Warden Dixon asking him about It. Moore's May 
7, 1990 memorandum or asking him to distinguish acts occurring before and after May 7, 1990. 
The Petitioner also testified that he did not recall ever admitting to taking food after May 7, 1990 
while in conference with Dixon, Watson, and Reardon. 

55. If the Petitioner did admit to taking food for personal consumption after May 7, 1990, such an 
admission was unintentional and the result of his emotional state upon finding himseff 
unexpectedly in the midst of a predismissal conference. 

56. The Petitioner was asked to leave the room. Dixon, Watson, and Reardon then discussed what 
disciplinary action to take. Warden Dixon bcfieved that the minimum sanction should be a fmal 
written warning. He also considered demotion. Watson and Reardon also considered the option 
of demotion rather than dismissal. 

57. Warden Dixon believed that the practice of taking food from the Central Prison kitchen for per- 
sonal consumption had resulted in the Petitioner losing control of his staff and the inmate popu- 
lation he supervised. Warden Dixon also believed that the Petitioner had lost his credibility as a 
supervisor of staff and inmates and. therefore, the Petitioner would be unable to fulfill his duties 
as a Correctional Sergeant. Because Warden Dixon believed that the Petitioner had lost his cred- 
ibility with the staff and inmates, demotion was eliminated as an option. 

58. There is no competent evidence that the Petitioner had lost the ability to supervise liis staffer the 
inmate population prior to August 28, 1990. Warden Dixon had not received any reports from 
either Lt. Moore or any Correctional Officer in L'mt 3 that the Petitioner had lost his ability to 
control his unit. 



7.J NORTH CAROLINA REGISTER May 1, 1992 316 



CONTESTED CASE DECISIONS 



59. The Petitioner had not been counseled by his supenors prior to August 28, 1990 that he was losing 
control of Unit 3 or that he had lost his credibility. The Petitioner did not experience any disre- 
spect from prison inmates or instances when he was unable to control his inmate population prior 
to August 28, 1990. 

60. Warden Dixon's belief that the Petitioner had lost his credibility and ability to control his unit was 
a personal opinion. 

61. Warden Di.xon recalled the Petitioner to his office and informed the Petitioner that he was to be 
suspended with recommendation for dismissal. 

62. On October 10, 1990. the Petitioner was notified that the recommendation to dismiss him based 
on unacceptable personal conduct, misuse of state supplies, and insubordination was approved 
effective August 28. 1990. 

63. The Respondent's dismissal letter states that the Petitioner was terminated because of unacceptable 
personal conduct. First, taking food for personal consumption prior to May 7, 1990 and directing 
staiTto take food for personal consumption prior to May 7, 1990, in violation of department policy 
5 NC.AC 2A .0202(e)(2). Second, taking food for personal consumption after .May 7, 1990, \io- 
lated Lt. Moore's memorandum and constituted insubordination. 

64. Each Correctional OtTicer in Unit 3 who took food from the kitchen for his personal consumption 
prior to May 7, 1990 received an oral counseling rather than dismissal as an appropriate discipli- 
nary measure. 

65. Central Prison staff violated 5 NCAC 2A .0202(ej(2) on two prior occasions. In neither instance 
was the employee terminated. 

66. At the time Warden Dixon made his decision to recommend the Petitioner's dismissal, the only 
information he had that the Petitioner had \iolated Lt. Moore's May 7, 1990 memorandum was 
the Petitioner's alleged admission during the predismissal conference. 

67. There is no e\idence that after May 7, 1990 anyone ever saw the Petitioner consume food that 
was taken from the Central Prison kitchen. 

68. There is no evidence that after May 7, 1990, the Petitioner instructed any member of his staff or 
an>' inmates under his supen.ision to get food from the Central Prison kitchen for the Petitioner's 
personal consumption. 

Based on the foregoing Findings of Fact, the undersigned .-\dministrati\'e Law Judge makes the fol- 
lowing: 

CONCI.l SIGNS OF LAW 



1. .At the time of the Petitioner's dismissal, section 126-35 of the North CaroUna General Statutes 
provided in pertinent part, as follows: 

No permanent employee subject to the State Personnel Act shall be discharged, 
suspended, or reduced in pay or position, except for just cause. 

2. T he Respondent failed to shou' that as a result of the Petitioner's actions, he can no longer function 

effecti\'ely as a supen isor of inmates and or subordmate staff. 

3. The Respondent did not meet its burden of proving by the greater weight of the substantial e\ i- 
dence that the Petitioner s conduct prior to May 7. 1990 justifies his termination from employ- 
ment. 



317 7:3 NORTH CAROLINA REGISTER May 1,1992 



CONTESTED CASE DECISIONS 



4. The Respondent did not meet its burden of proving by the greater weight of the substantial evi- 
dence that the Petitioner violated Lt. Moore's May 7, 1990 memorandum. 

5. The Respondent did not have just cause to dismiss the Petitioner from his employment. 

RF.COMMF.NDED DECISION 

The State Personnel Commission wiU make the Final Decision in this contested case. It is recom- 
mended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and 
order the Respondent to reinstate the Petitioner, compensate the Petitioner for lost wages and benefits, 
and pay the Petitioner reasonable attorney's fees. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 

NOTICE 

Before the agency makes the FIN.AL DECISION, it is required by North Carolina General Statutes 
section 150B-36(a) to give each party an opportunity to file exceptions to this RECOM.MENDED DE- 
CISION, and to present written arguments to those in the agency who will make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 

This the 6th day of AprU, 1992. 



Brenda B. Becton 
Administrative Law Judge 



7:5 NORTH CAROLINA REGISTER May I, 1992 3 IS 



COMES TED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THF OFFICF. OF 

ADMINISrRATI\E HEARINGS 
COLN T'V OF CATAWBA 



TEN BROECK HOSIMT \L ) 

(PAIIENT #110587, MEDICAID #124-24-4801-0. ) 91 DHR 0618 

Petitioner ) 

) 
TEN BROECK HOSPITAL ) 

(PATIENT #1 10538. MEDICAID #2403342545), ) 91 DHR 0429 

Petitioner ) 

) 
TEN BROF( K HOSPITAL ) 

(PATIEN r #110788, MEDICAID ff900-12-6762-T), ) 91 DHR 1265 

Petitioner ) 

) 
V. ) 

) 

N.C. DEPARTMENT OF HUMAN RESOURCES, ) 

DI\ ISION OF MEDICAL ASSISTANCE, ) 

Respondent ) 



RECOMMEND \riON OF SI MM \R^ DISPOSI HON FN CASE NO. 91^ DHR 0618 

ST.ATEMENT OF THE CASE 

The Petitioner. 1 en Broeck Hospital, instituted these contested cases to challenge the claims of the 
Respondent. North Carolina Department of Human Resources. Division of Medical Assistance (here- 
after referred to as the ".Agency" or "DM.A") for recoupment from Ten Broeck of .Medicaid payments 
for services Ten Broeck provided to individual ,\ledicaid patients. 

These three cases were consolidated by Order of Consolidation entered by the Chief .Administrati\"e 
Law Judge on Januar>' 14. 1992. 

Prior to the date of consolidation. Ten Broeck Hospital had filed a Motion for Recommendation of 
Summary Disposition in Case No. 91 DHR 061S on No\ember 1. 1991. The .Agency tiled its response 
to the Petitioner's Motion for Recommendation of Summary Disposition on December 9. 1991 to 
which Ten Broeck Hospital filed a reply on Januan' 8. 1992. Oral argument was heard on Januar>" 2S. 
1992. This recommendation of summar," disposition is limited to the claim for recoupment in Case 
No. ^1 DHR 0618. 

APPEARANCES 

The .Agency was represented by Jane T. Friedensen. .Assistant .\ttome\" General, who appeared for 
Lacy L. Thomburg. .Attomey General for the State of North Carohna. Ten Broeck was represented 
by Robert \'. Bode. Diana E. Ricketts. and S. Todd Hemphill, of the law turn of Bode, Call & Green. 

ISSUE 

WTiether there is any genuine issue as to any material fact and whether any party is entitled to a 
summary disposition as a matter of law in Case No. 91 DHR 0618. 

BURDEN OF PROOF 

The mo\ing party has the burden of establisliing that there is no genuine issue as to any material fact 
and that it is entitled to summar.' disposition as a matter of law. 



il9 7:3 XORTH CAROLI.XA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



EXHIBITS 

Editor's Note: Exhibit list has been omitted from this publication. A copy may be obtained by con- 
tacting the Office of Administrative Hearings. 

LNDISPLTED FACTS 

Based on the uncontroverted evidence appearing of record, to which consideration may be given under 
G.S. 150B-33(3a), 26 NCAC 3.0001, 3.0005(6), and Rule 56, N.C.R.Civ.P., including the pleadings, 
depositions, answers to interrogatories, documents produced, affidavits, and admissions on fde, together 
with the testimony and affidavits previously admitted in connection with the proceedings on the Mo- 
tion for Stay held July 24, 1991, which were incorporated by the parties in support of or in opposition 
to the motion, and having considered the legal memoranda submitted by the parties and the oral ar- 
gument of January' 28, 1992, the Administrative Law Judge has concluded that there is no genuine issue 
as to any material fact and makes the following fmdings of undisputed, material fact:' 

1. The petitioner. Ten Broeck Hospital, is a psychiatric hospital in Hickor>', North Carolina. I'ndcr 
a Medicaid Hospital Participation Agreement with the Agency, Ten Broeck provides "acute" (i.e., in- 
patient hospital) psychiatric care to \Iedicaid patients, for which it is paid through the state Medicaid 
plan. 

2. In 1991, DMA conducted a postpayment review, and advised Ten Broeck that acute care for one 
of its previous .Medicaid patients was, on reflection, inappropriate, and that the patient could have been 
treated at a lower level of care in a residential treatment center or in a wilderness camp program. 

3. DMA has made no claim of fraud of misrepresentation by Ten Broeck. (DMA Admission 31.)^ 
Nor has there been any claim or showing that the senices for which Medicaid was now being denied 
were not performed. 

4. It is undisputed that (1) the Burke County Department of Social Services, (2) the preadmission 
certification review agency acting under contract with and as the agent of the State .Medicaid agency, 
and (3) the District Court of Catawba County each either sought or approved the patient's admission 
to Ten Broeck. 

5. In October 1989, the Burke County Department of Social Services ("DSS"), as legal custodian, 
initiated the transfer of the patient from a residential treatment center to Ten Broeck psychiatric hos- 
pital. DSS had been appointed by the court in 1986 as legal custodian for the patient. The patient 
was in the legal custody of DSS when DSS referred her to Ten Broeck. (DMA .Admission 9). 

6. In 1988, the year before her admission to Ten Broeck, during a temporary' placement with her bi- 
ological mother, the patient had deliberately set fire to and destroyed her mother's trailer home, re- 
sulting in her adjudication as a delinquent juvenile for felonious arson (DMA Admission 27c). 

7. Por several months immediately preceding her admission to Ten Broeck, the patient had resided 
at Baptist Children's Home, where she reportedly had engaged in "major inappropriate behasiors" and 
exhibited "a threatening attitude toward peers and staff." [ See Baptist Children's Home Discharge 
Summar>', DMA Exh. 13, p. 5, Stay Hearing, quoted in part in D.\IA Admission 27(k).l When she 
ran away from Baptist Children's Home in September 1989, the home discharged her to emergency care 
and declined to be involved after discharge. (Id: Dr. Philip Schmitt .Affidavit, SD Pxh. 7(A), at p. 3.] 

8. After running away in September 1989, she was placed in 72-hour detention in the Wilkes County 
Ju\emle Detention Center (DM.\ Admission 27c). 

9. She was subsequently placed in the Rainbow Center, as an emergency placement. 

10. Immediately preceding her referral by DSS to Ten Broeck, she reportedly made threats to set ftre 
to Rainbow Center (D.MA Admission 27b), and threats of injury, which were reported to DSS, 



7:i NORTH CAROLINA REGISTER May I, 1992 320 



COSTESTED CASE DECISIONS 



promptina DSS to seek to have the patient admitted to a psNchiatric hospital for e\'aluation and treat- 
ment fsee'DMA Admissions 10-11: Bndges Depo. Tr. 6-8. '59, 99-103 and Depo. Exh. 9, SD Exh. 8). 

1 1. Prior to the patient's admission to Ten Broeck, there had been extensi%"e efforts to treat her at a 
lower level of care. She had been treated in a variety of settmgs. both residential and mstitutional. in- 
cluding detention centers, group homes, residential treatment centers, the state juvenile training center 
and wrldemess camp, and Broughton state mental hospital (DM.A Admissions 26a-h). 

12. Specifically, her histoPv' during the period from September 1985 until October 19S9 included ad- 
missions to Broughton state mental hospital. Fhoemx Home. South Mountain Children's Home, DHR 
Division of "^'outh Ser\ices Juvenile Evaluation Center, JEC \\'ildemess Camping Program, Baptist 
Children's Home, \\'ilkes Regional Juvenile Detention Center, and the Rainbow Center (DMA Ad- 
missions 26a-26h). 

13. Ph\sician consultants emplo\ed by D.NLA later found based on their review of medical records 
that the patient had "severe beha\ior problems." (Dr. Thomas Cornwall's Report. D.\1A Exh. 11, Stay 
Hearing . attached to his deposition as Exh. E. SD Exh.5i; and that she had "chronic behavior prob- 
lems that made it dilTicult for DSS Juvenile Justice to place her appropriately," id (Dr. Luann Leidy's 
Report, attached to her deposition as Exh. 4, SD E.xh. 6). 

14. D.M.A has admitted that the patient exhibited numerous behavioral problems. These included 
frequent running away (DMA .Admission 2^d). aggression and oppositional beha\'ior (DM.\ Admis- 
sion 27i). substance abuse including alcohol and LSD (DMA Admission 27f, 27g). arson (DMA Ad- 
mission 2~a). threats of tire-setting (D.M.A Admission 27b). stealing (D.\LA Admission 27j), and se.xual 
abuse (DMA Admission 27h). 

15. On October 17, 19S9. a social worker for DSS requested that Ten Broeck Hospital accept this 
patient for inpatient psychiatric evaluation and treatment of mental iUness (DM.A Admission 10 and 
Exh. B to DM.\ .Admissions). 

16. In requesting that the patient be admitted to Ten Broeck. DSS represented to Ten Broeck that 
DSS had knowledge "that the patient was sutTering from a condition requiring hospital care" (D.MA 
Admission 11 and E.xh. B to D.M.A .Admissions). 

P. Before Ten Broeck accepted the patient for admission, an independent medical team for Medical 
Re\iew of North Carolina. Inc. ("MRNC"). acting under contract with and as the agent of D.MA. 
conducted a preadmission re\"icw to determine the medical necessity for the patient's admission to Ten 
Broeck. as presently required b\ the state's Medicaid plan (DM.A .Admissions 2. 36j. 

18. On October 17, 198'). MRNC approved the admission of the patient to Ten Broeck (DM.A .Ad- 
mission 3). 

19. The approval was given after consultation by MRNC with an MRNC physician consultant. Alan 
Krueger. M.D.. a hcensed psychiatrist (DMA Admissions 4. 6). Dr. Krueger approved of the admis- 
sion of the patient to Ten Broeck (DM.A Admission 5). Dr. Krueger consulted with the attending 
physician. Dr. Philip Schmitt. and determined, inter alia, that "proper treatment of the patient's psy- 
chiatric condition requires services on an inpatient basis under the direction of a physician." (October 
17. 1989 Certification of Need b_\' Independent Team. Medical Re\'iew of North Carolina. Inc.: DMA 
.Admission " and D.MA Admission Exh. A.) 

20. The form generated by .MRNC in the preadmission review, attached as Exh. .A to the D.M.A 
Admissions and signed b\' Dr. Krueger. states in pertinent part: 

l\[)IC.-\riON 1 OR HOSPH ALIZAIION; 15 ...(year old white female] with 
long hx (histoPi I of pre\ious psychiatnc admissions now exhibiting assaulti\'e 
behavior includma arson. Has additional histor\ of runawa\' beha\'ior. 



ni -.-3 XORTH CAROLLXA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



Physician Consultant's comments: Dr. Schmidt (sic Schmitt) confirms above 
hx. Pt. is considered at risk to self & others & meets criteria for in-pt [inpatient] 
treatment with probable long term placement. 

CERTIFICATION 

I hereby certify the following: 

1 . I do not have an employment or consultant relationship with the admitting 
facility. 

2. AmbulatoPr" care resources available in the community do not meet the 
treatment needs of this recipient. 

3. Proper treatment of the recipient's psychiatric condition requires services on 
an impatient basis under the direction of a physician. 

4. The scnices can reasonably be expected to improve the recipient's condition 
or prevent further regression so that the ser\'ices will no longer be needed. 

5. I have knowledge of the patient's situation and competence in diagnosis and 
treatment of mental illness. 

/Vlan L. Krueger .\1.D.. 17 Oct 89, Signature of Physician Consultant, Date 

This admission was re\iewed and approved in a telephone discussion with the 
above named physician consultant on 10 17 89. 

Pam Denning 

Signature, MRNC Preadmission Review- Nurse 

Date time decision called to recipient's phvsician staff: 
10/17/89 2:45 

Exh. A to DMA Admissions; see DM.\ Admission 7. 

21. MRNC thus concluded that the patient met the screening criteria for medical need for admission 
(DMA Admission 38), criteria that were appro\ed by DMA (DMA Admission 40) and that comply 
with the State Medicaid plan (DM.A Admission 41). 

22. MRNC then advised the provider of its approval of the admission on October 17, 1989 (D\I.\ 
Admission 8). 

23. D.M.A has admitted that "in conducting the preadmission review for the patient, MRNC acted 
as an agent of the respondent" (DMA Admission 42). 

24. The patient was admitted to fen Brocck the next day, on October 18, 1989. 

25. Shortly after admission, the DSS filed a petition with the Catawba County District Court seeking 
its concurrence in the admission, as required for psvchiatric hospitalization for minors pursuant to G.S. 
Ch. 122C, Art. 5, Part 3. §s^ 122C-221 et se£_ (D.MA Admission 13; DMA Admission 32 and DSS 
Notice of Hearmg, D.MA Admissions Lxh. D). 

26. As admitted by DM.\. the Burke County 'DSS is a governmental agency authorized pursuant 
to G.S. 10S.\-25 to administer the program of medical assistance [Medicaid] under rules and regulations 
adopted by the Department of Human Resources." DM.A Admission 25; G.S. I08A-25. 



7:5 NORTH CAROLINA REGISTER May I, 1992 322 



CONTESTED CASE DECLSIONS 



27. On October 30, 19S9, within 12 days of tiie patient's admission to Ten Broeck, the court held 
an evidentiary' hearing pursuant to G.S. 122C-224 and 122C-224.3 on the DSS petition, presided over 
by Catawba County District Court Judge Jonathan L. Jones (DMA Admission 14). The DSS had 
custody of the patient, and represented to the court, and the court so found, that DSS consented to the 
admission as guardian for the patient (DMA Admission 23). The patient was present and represented 
b\' counsel at the hearing on October 30, 19S9 (D.MA Admission 24). The record of the voluntary 
commitment hearing for the patient made at or about the time of the hearing (DMA Admission 33) 
indicates that, in addition to the patient and her attorney, the patient's physician, the Clerk of Court, 
the guardian (DSS social worker), and Judge Jones were in attendance. ( See DMA Admission 13 and 
DMA Admissions Exh. E; .Affidavit of Philip Schmjtt, .M.D.. SD lixh. 7A, \ 7.) 

28. The North Carolina statutes pro\ide for judicial hearings to determine the necessity for admission 
of minors to inpatient ps\chiatnc hospitahzation. The statutes go\eming voluntan,' admission hearings 
pro\ide that before any minor may continue to be admitted in a psychiatric hospital, a district court 
must make the following findings: 



M22C-224.3. Hearing for re\iew of admission. 



(f) F"or an admission to be authorized bc\ond the hearing, the minor must be 
(1) mentally ill or a substance abuser and (2) in need of further treatment at the 
24-hour facility to «hich he has been admitted, further treatment at the ad- 
mitting facilitx" should be undertaken only «hen lesser measures >vill be insuffi- 
cient, h is not necessary that the judge make a fmding of dangerousness in 
order to support a concurrence in the admission. 

(g) The court shall make one of the follow ing dispositions: 

(1) If the court finds by clear, cogent, and convincing evidence that the re- 
quirements of subsection (f) have been met, the court shall concur with the 
voluntap.' admission and set the length of the authorized admission of the minor 
for a period not to exceed 90 days: or 



(h) The decision of the District C^ourt in all hearing and rehearings is final. 
.Appeal ma\ be had to the Court of .Appeals by the State or by any party on the 
record as in civil cases 



G.S. 122C-224.3(f)(g) (emphasis added). 

29. On October 30, 1989, the date of the hearing, the court entered a written order concurring in the 
admission of the patient to Ten Broeck pursuant to G.S. 122C-224.3. (DMA Admission 17.) .A true 
copy of the order was admitted as Exh. C to the DM.A .Admissions (DM.A Admission 18). 

30. 1 he court's order specifically found that the patient was mentally ill and m need of further treat- 
ment at Ten Broeck Hospital (D.\I.\ .Admission 19 and D.M.A .Admissions Exh. C). The court further 
found specifically that the patient suffered from a conduct disorder and alcohol and pohsubstance 
abuse (DM.A .Admission 20 and Exh. C to DM.A .Admissions). 

31. The order of the district court set a period not to exceed 60 days from October 30, 19S9, to review 
the admission to Ten Broeck (DM.A .Admission 21 and DM.A .Admissions Exh. C). 



323 7:3 NORTH CAROLINA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



32. The statute provides that the court's determination is "fmal" and allows direct appeal "by the 
State or by any party ..." G.S. 122C-224.3(h). There is no dispute that neither the State nor any party 
appealed. 

33. /Vfter admission of the patient, "a re-evaluation of her treatment needs was planned and imple- 
mented by Ten Broeck Hospital . . ." (see DMA Exh. 11, D.\IA Consultant Dr. Lu Aim Leidy's 
Report, introduced at Stay Hearing and attached as E.xhibit 4 to Dr. leidy's Deposition, SI) Exh. 6). 

34. The patient was discharged from Ten Broeck on November 27, 1989 (DMA Admission 22), after 
40 days of care at the hospital and within the 60-day period of treatment allowed by the judge's order. 
She was discharged to Park Ridge Hospital's long-term care unit. Dr. Schmitt /Vffidavit, SD Exh. 7, |i 
8. 

35. On November 3 and 17, and December 1, 1989, Ten Broeck submitted claims for .Medicaid re- 
imbursement to cover the services for this patient. DMA remibursed Ten Broeck for these services in 
the total amount of SI 1,350.04, by two pavments reflected on DMA's Remittance and Status Reports 
for November 6, 1989 ($3,775.72 paid for 14 days) and Eebruary 5, 1990 ($7,574.32 paid for 26 days). 
SD Exh. 2(d). There is no dispute that this is the correct amount for the services at the Medicaid per 
diem rates established for Ten Broeck. 

36. On .March 5, 1991, approximately 15 months after the patient's discharge, DMA wrote to Ten 
Broeck that: 

Our review of the medical records of [the patient] indicates that acute hospital 
care was unnecessar>' from 10/18/89 through 11/27/89 (40 days). This patient 
appears to have been treatable at a residential level of care. 

DMA Letter of March 5, 1991, DMA Exh. 12, Stay Hearing. 

37. The letter demanded repa\ment of the entire $1 1,350.04 paid for the services to this patient. KE 

38. B\' letter of April 3, 1991, Ten Broeck requested reconsideration (D.MA Exh. 13, Stay Hearing). 

39. D.MA received the request for reconsideration on April 4, 1991. (DMA Stay Hearing Exhs. 10, 
13.) 

40. By letter dated May 23, 1991, DMA confumed its decision. DMA noted in its reconsideration 
letter that the patient's physician reported that the patient had made "tlircats related to arson and po- 
tential runaway" and also took note of "the court order remanding her for up to 60 days." (DMA Letter 
of May 23. 1991, DM.A Exh. 14, Stay Hearing.) However, the letter noted, two outside psychiatric 
consultants employed by DMA had reviewed the information and "|t]hey felt she was in need of resi- 
dential treatment or wUdemess camp type program as opposed to acute inpatient care." The DMA 
letter concluded that: 

Based on the medical records reviewed, 1 fmd that I must uphold the original 
decision that acute hospital care was unnecessar>" for the period of October 18 
through November 27, 1989. The unavailability of residential treatment is not 
sufficient reason to reimburse for acute care. 

Id. The letter demanded repayment of the entire amount of $1 1,350.04. Id^ 

41. This petition for contested case, tiled on July 3, 1991, followed. 

42. DMA has admitted that: "The DMA decision to seek recoupment in this case was not based 
upon any allegations of fraud or material misrepresentation by petitioner." (DMA Admission 31.) 
To the same effect. D\L-\ emplo\ce Linda Connelly, .Assistant Director for Program Integrity, testified 
that: "In this case, there is no fraud." (Connelly Tr. 141, Stay Hearing, July 24, 1991, SD Exh. 4.) 



7:3 NORTH CAROLINA REGISTER May I, 1992 324 



CONTESTED CASE DECISIONS 



43. G.S. 108A-55 pro\ides. in pertinent part, that: 

The Department [of Human Resources] may authorize within appropriations 
made for this purpose, pa> ments of all or part of the cost of medical and other 
remedial care for any eligible person when it is essential to the health and wel- 
fare of such person that such care be provided, and when the total resources of 
such person are not sufficient to provide the necessary care. 

44. State Medicaid regulations currently provide that: 

All medical services performed must be medically necessary ... .Medical necessity 
is determined by generally accepted North Carolina community practice stand- 
ards as \erified by independent Medicaid consultants. 

10 NCAC 26C .0005. [This rule was first adopted effective .March 9, 1990. See 4 N.C.Rea. SOS (Nov. 
15, 1989); id, at 1153 (Mar. 1, 1990).] 

45. Inpatient psychiatric hospital ser\'ices are co\'ered under the North Carolina Medicaid plan pur- 
suant to 10 NCAC 26D .0111. This rule currently pro\ides, inter alia , that "the admitting hospital is 
responsible for obtainina certification [of the necessitv of such care] for persons under age 21 m ac- 
cordance with Subpart D of 42 C.F.R. 441." 10 NCAC 26B .0111 (adopted effective Februar," 1, 
1991). 

46. The federal rules for certification of necessity of care, referred to In 10 NCAC 26B .01 1 1, require, 
inter alia , that the state rules provide for an independent team, including a ph\ sician, with competence 
m diagnosis and treatment of mental illness, preferable in chUd psychiatry, and with knowledge of the 
individual situation, to certify that: 

(1) .Ambulatory care resources a\-ailable in the community do not meet the 
treatment needs of the recipient; 

(2) Proper treatment of the recipient's psychiatric condition requires senices on 
an inpatient basis under the direction of a physician; 

(3) The ser\lces can reasonably be expected to lmpro\"e the recipient's condition 
or prevent further regression so that the services will no longer be needed. 

42 C.I-.R. 441.152(a)(l-3); see 42 C.f.R. 441.152-.153; 42 U.S.C. 1396a(a)(26.44); 1396d(h)( 1 )(B). 
The state plan must also provide that the sen, ices be under a physician's direction in a psychiatric fa- 
cility accredited by the Joint Commission on .Accreditation of Healthcare Organizations. 42 C.F.R. 
441.151. The federal rules pro\ide that the foregoing preadmission certification of need for Inpatient 
psychiatric services for persons under age 21 under Part -141 satisfies the utilization control requirement 
of physician certification of need for care. 42 C.F.R. -141.152(b), 456.481. 

47. In a .Medicaid Bulletin published in 1986, D.M.A advised providers that the preadmission review 
program for electi\"e admission to Impatient psychiatric hospitals "is managed by Medical Re\ lew of 
North Carolina, Inc. In accordance with the policies set forth by the Division of Medical Assistance." 
.Medicaid Bulletin, at p. 1 (19S6) .Attachment F to D.M.A s Response 'lo Request For Production 
ser\-ed September 9, 1991, SD E.xh. 2(c) ]20,180]. In another publication, DMA similarly ad%'ised that: 
"The State has found it cost efficient and operationally beneficial to contract the ser\'ices of private 
companies to process claims and to perform utilization review, prior approval and other related func- 
tions." Physicians Medicaid .Manual (March 1980), SD Fxh. 3(c) [20,561]. DMA thereby expressly 
identified .MRNC as the state s agent to providers. DM.A has also expressly admitted In this case that 
MRNC was DMA's agent In pertbrming the preadmission certification (D.M.A Admission 42). 



i25 7:3 NORTH CAROLINA REGISTER May I, 1992 



CONTESTED CASE DECISIONS 



CONCLLSJONS OF LAW 

Based on the foregoing facts, the Administrative Law Judge makes the foUowing conclusions of law: 

1. There is no genuine issue of material fact and, based upon the pertinent Medicaid authorities and 
contract law. Ten Broeck is entitled to summar\' disposition as a matter of law. 

2. DMA's claim for recoupment of payments in this case is beyond its authority and would breach 
its contractual duties to Ten Broeck. The authorities leading to this conclusion are discussed in detail 
below. The Administrative Law Judge's review of those authorities leads to the following conclusion. 
The .Medicaid provisions regarding inpatient psychiatric services contemplate an independent pread- 
mission certification of necessity for inpatient psychiatric ser\'-ices for patients under age 21, conducted 
here by Medical Review of North Carolina, Inc. (".MRNC"), an agent of the State. Such certification 
satisfies the .Medicaid utilization control requirements. State statutes further provide a judicial mech- 
anism for determining necessity of inpatient psychiatric care for adolescents. These MRNC and judicial 
determinations of need are not subject to postpayment, de novo review and reversal by D.MA at least 
in the absence of fraud or material misrepresentation, and the recoupment of .Medicaid payments is not 
allowed for in such cases in the absence of fraud or material misrepresentation. 

3. The Agency disputes that admission of this patient to hospital care was medically necessary. This 
dispute does not rise to a genuine issue as to a material fact because, in the absence of an allegation of 
fraud or material misrepresentation, the Agency as a matter of law is bound by the determination of its 
agency, MRNC, that the hospital admission was medically necessary and otherwise met the criteria for 
hospital admission under the State Medicaid plan. This is especially so where the DSS, another gov- 
ernmental agency, affirmati\ely requested and consented to the admission and where the district court, 
on petition of DSS, made a legall\' final decision pursuant to G.S. 122C-224.3, fmding by clear, cogent 
and convincing evidence that the patient was mentally lU, that she was in need of further treatment at 
Ten Broeck, and that lesser measures were insutficient. This conclusion of law is limited to psychiatric 
hospital ser\'ices for patients under age 21 provided for under 10 NCAC 26B .0111 and 42 CFR 441, 
Subpart D. 

DISCISSION 

Editor's Note: Discussion has been omitted from this publication of the Decision. A copy (19 pages) 
may be obtained by contacting the Office of Administrative Hearings. 

CONTUSION 

Lor all of the abo\e reasons, D.MA has no right, as a matter of law, to recoup Medicaid funds paid 
to Ten Broeck for the inpatient psychiatric services provided to this patient. Those ser\'ices were 
indisputably provided at the request of the Burke County Department of Social Ser\'ices, an agent of 
the State. MRNC, also an agent of the State, approved those services as medically necessary prior to 
the patient's admission. .Additionally, after an c\-identiap, hearing was held regarding the need for the 
patient's admission to Ten Broeck, in which DSS appeared as the petitioner, the court concluded in 
an order which by statute is "fmal" that inpatient psychiatric services at Ten Broeck Hospital were 
medically necessary. Lnder the applicable statutes and regulations, as weU as general contract law, 
D\L\ is not allowed retroactively to detcnninc this issue de novo, absent any allegation of fraud or 
misrepresentation on the part of Ten Broeck. 

Any other result would force providers such as Ten Broeck constantly to second guess the admission 
of Medicaid-eligible patients, and possible to refuse to admit patients, even though admission was ap- 
proved as medically necessary, on the fear that DNLA would later change its mind regarding the need 
for hospitalization. Such a result would leave health care facihties with absolutely no way to know 
whether the state's promise to pay for those patients will be honored. Such a finding would undercut 
the intent of the Medicaid program to enlist providers by making timely, reliable pa)'ment for services 
and to make covered services available to Medicaid patients "at least to the extent those ser\'ices are 
available to the general population." 10 NCAC 26H .0207.'° 



7:i NORTH CAROLINA REGISTER May I, 1992 326 



CONTESTED CASE DECISIONS 



Based on the foregoing conclusions of law, the Administrative Law Judge recommends that the 
Agency grant summan' disposition for Ten Broeck Hospital on this claim for recoupment. 

NOTICF 

The Agency making the fmal decision in Case No. 91 DHR 0618 is required to give each party the 
opportunity to file exceptions to this recommendation and to present written arguments to those in the 
Agency who will make the fmal decision. G.S. 150B-36(a). 

The Secretary' of the North Carolina Department of Human Resources or his designee will make the 
fmal decision in Case No. 91 DHR 0618. 

Based upon the representations of counsel for the parties in a telephone conference with the under- 
signed on .March 27, 1992, the undersigned notes that the parties agreed that in the event the under- 
signed granted the Petitioner's Motion for Summan Disposition m Case No. 91 DHR 0618, this case 
should proceed separately for fmal decision by the Agency, rather than being retained in the Office of 
Administrative Hearings pending resolution of the other two above-captioned consoUdated cases. The 
parties have accordmgly filed a written stipulation regarding severance of Case No. 91 DHR 0618 from 
the other two consoUdated cases. L'pon entry of an order for severance by the Chief Administrative 
Law Judge as stipulated to by the parties, based upon this Recommendation for Summary Disposition, 
Case No. 91 DHR 0618 may proceed to the Agency for fmal decision. 

This the Sth day of April. 1992. 



Fred G. Momson. Jr. 

Semor Administrative Law Judjjc Presiding 



FOOTNOTKS 

' The .Administrative I aw Judge recognizes that the appellate courts, in review of summary judgments 
in superior court under Rule 56, ha\"e indicated that 'findmg facts in a judgment entered on a motion 
for sumniar%' judgment is unnecessary and ill ad\ised simply because to do so indicates that a fact 
question is presented." Carroll v_ Rounlree. 34 N.C.App. 167, 171, 237 S.E.2d 566 (1977): see Summev 
Outdoor .\d\. V. Henderson Countv, 96 N.C.App. 533, 386 S.E. 2d 439, 442 ( 1989) (while not advis- 
able to make findings ot tact, such findings do not invalidate summar>' judgment). On the other hand, 
it has been obser\'ed that "it is helpful to the parties and the courts for the trial judge to articulate a 
summary of the material facts which he considers are not at issue and which justif\ entr\' of 
judgment. " llvde Ins. .AL'encv, Inc. v_ [^i\ie I easing Corp., 26 N.C.App. 138, 142, 215 S.E. 2d 162 
(1975): Rodgerson v_ Davis, 27 N.C.App. 173, 178, 218 S.E. 2d 471 (1975) (tnal court should not make 
fmdings of tact in Riling on summan.' judgment but may properly Ust the material, uncontro\erted facts 
which are the basis of conclusions of law and judgment). The .Administrative Procedure Act requires 
that "Except as provided in Cj.S. 150B-36(c), in each contested case the Administrative Law Judge shall 
make a recommended decision that contains findings of fact and conclusions of law." G.S. I50B-34. 
G.S. 150B-36(c) concerns certain fmal decisions made by the Administrative Law Judge. This case is 
not such a decision but is a recommendation of summar\' disposition of a part of this consolidated case 
as provided for in 26 NCAC 3 .0005(6). This decision sets forth the material facts as to which there 
is no genuine issue, and will also discuss some matters that were disputed, but as to which the .Ad- 
ministrative I aw Judge has concluded that the dispute either did not present a "genuine" issue or did 
not involve a "material" fact. 

■ References to "D.M.A .Admission" and to DM.A Admission Exhibits are to DM.A's September 9. 
19*^)1 and October 8, 1991 Responses to Ten Broeck's Requests for .Admissions and to documents at- 
tached to and authenticated b\ I^M.A s response to admissions. The admissions are in two sets, 



i27 7:3 NORTH CAROLIVA REGISTER May I. 1992 



CONTESTED CASE DECISIONS 



numbered consecutively, and were attached as Exh. 1 to Ten Broeck's Motion for Summary' Disposi- 
tion. 

References herein to "SD Exh. #" are to exhibits listed in and attached to Ten Broeck's Motion for 
Summary Disposition. References to "DMA Stay Hearing Exh. #" are to exhibits introduced by DMA 
at the hearing on Ten Broeck's Motion for Stay held July 24, 1991, which were listed and incorporated 
by reference in Ten Broeck's Motion for Summary Disposition. References to 5-digit numbers [20,000] 
are to numbers previously stamped on pages of some of the exhibits and included herein to aid in lo- 
cating a particular page. 

Footnotes 3 - 9 were contained in the Discussion section. 

'" In light of the foregoing, there is no need to reach the question of the medical necessity of the 
hospitalization other than to note that based on Ten Broeck's showing and DMA's response there did 
not appear to be a "genuine" issue as to any material fact on this issue, and Ten Broeck would be en- 
titled to judgment as a matter of law. It did not appear that DMA could forecast that it would be able 
to present substantial evidence which would allow D\IA to prevail on its claim. 



7:3 NORTH CAROLINA REGISTER May 1, 1992 328 



NORTH CAROLINA ADMINISTRA THE CODE CLASSIFICA TION SYSTEM 



1 he Surlh Carolina Administrative Code (NCACj has four major subdivisions of rules. Two of 
these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each 
major department in the S'orth Carolina e.xecuthe branch of government has been assigned a title 
number. Titles are further broken down into chapters which shall be numerical in order. The other 
ni'o, subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIMSIONS OF THE NORTH CAROLEs A ADMIMSTRATPV E CODE 



ITLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


.Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic and Community 


Certilled Public Accountant Examiners 


8 




Development 


Chiropractic Lxaminers 


10 


5 


Correction 


General Contractors 


12 


6 


Council of State 


Cosmetic .Art Lxaminers 


14 


7 


Cultural Resources 


Dental Lxammers 


16 


8 


Elections 


Dietetics Nutrition 


17 


9 


Go\emor 


Electrical Contractors 


18 


10 


Human Resources 


Electrolysis 


19 


11 


Insurance 


Foresters 


20 


12 


Justice 


Geologists 


21 


13 


Labor 


Hearing .Aid Dealers and Fitters 


->2 


14A 


Crime Control and Public Safety 


Landscape .Architects 


26 


15A 


Environment. Health, and Natural 


Landscape Contractors 


28 




Resources 


.Martial & Family Therapy 


31 


16 


Public Education 


.Medical Lxaminers 


32 


17 


Revenue 


.Midwifery Joint Committee 


33 


18 


Secretary of State 


.Mortuary Science 


34 


19A 


Transportation 


Nursing 


36 


20 


Treasurer 


Nursing Home .Administrators 


37 


*21 


Occupational Licensing Boards 


Occupational Iherapists 


38 


1-1 


Administrati\e Procedures 


Opticians 


40 


23 


Community Colleges 


Optometry' 


42 


24 


Independent Agencies 


Osteopathic E.xamination and 


44 


25 


State Persormel 


Registration (Repealed) 




26 


Administratne Hearings 


PharmacN' 


46 






Ph\sical I herapy Examiners 


48 






Plumbing, Heating and Fire Sprinkler 


50 






Contractors 








Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Ps_\chologists 


54 






Professional Engineers and Land Suneyors 56 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 






Speech and Language Pathologists and 


64 






.Audiologists 








\'eteruiar\' Medical Board 


66 



Note: Title 21 contains the chapters of the \arious occupational licensing boards 



329 



NORTH CAROLTXA REGISTER Muy /, /9</J 



CUMULA TIVE INDEX 



CUMULA TIVE I.\DEX 

(April 1992 - March 1993) 



1992 - 1993 

Pages Issue 

1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 



AO - Administrative Order 

AC; - Attorney General's Opinions 

C - Correction 

FR - 1-inal Rule 

(;S - General Statute 

JO - Judicial Orders or Decision 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

TR - Temporar\' Rule 



ADMIMSIRAIION 

Auxiliary Scnices, 4 PR 

EWIRONMKM, HEALTH, AND NATURAL RKSOLRCES 

Coastal Management, 211 PR 

Environmental Health, 223 PR 

En\ironiTiental Management, 190 PR 

Health: Lpidemiologv, 140 PR 

Health Ser\ices, 52 PR 

NPDHS Pennits Notices. 1, 107 

Radiation Protection, 136 PR 

Wildlife Resources Commission, 28 PR, 133 PR 

Wildlife Resources Commission Proclamation, 176 

FINAL DECISION I FTIERS 

Voting Rights Act, 106, 174 

HUMAN RESOl RCES 

Aging, Division of, 121 PR 

Day Care Rules, 123 PR 

Economic Opportunitv, 5 PR 

Facility Services, 111 PR. 177 PR 

Medical Assistance. 4 PR 

Mental Health, De\elopmental Disabilities and Substance Abuse Services, 111 PR, 297 ER 

Social Services Commission, 183 PR 



INSURANCE 

Consumer Services Division, 125 PR 
Departmental Rules, 7 PR 



7:i NORTH CAROLINA REGISTER Mav I, 1992 330 



CUMULA THE INDEX 



Engineering and Building Codes, 19 PR 

Fire and Rescue Senices Division, 17 PR 

Jlearinas Di\ision. 124 PR 

1 ife and Health Division. 22 PR 

Property and Casualty Division, 20 PR 

Seniors' Health Insurance Information Program, 132 PR 

.JISTICE 

Alarm Systems Licensing Board, 27 PR, 189 PR 
State Bureau of Investigation, 188 PR 

LICENSrsG BO.\RDS 

Electrolvsis Examiners, Board of, 69 PR 
Nursmg, Board of, 232 PR 

LIST OF Rl LES CODIFIED 

List of Rules Codified, 72 

STATE PERSOVsEL 

Office of State Personnel, 237 PR 

TRANSPORTATION 

Ilialiwavs, Division of 228 PR 

Motor Vehicles. Division of 68 PR. 142 PR 



331 7:3 NORTH CAROLIXA REGISTER May I, 1992 



NORTH CAROLINA ADMINISTRATIVE CODE 

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